By: Guilherme Martins
The Federal Supreme Court (STF) resumes this Friday (Dec. 10) the trial of motions for clarification on the Action for Declaratory Judgment on Constitutionality (ADC) No. 49, which ruled out the ICMS tax collection over goods transactions between establishments owned by the same owner.
The action was judged in April this year, when STF declared some provisions of the Kandir Law (Supplementary Law 87/1996) as unconstitutional. The justices unanimously ruled out the paragraphs about ICMS incidence “even for another establishment of the same owner”. According to the Court, the mere transfer of goods between establishments of the same company does not constitute a taxable event.
The Court also declared as unconstitutional the section that stated the following: “each establishment of the same owner is autonomous”, since it was not clear in the decision what exactly means this autonomy scope. Therefore, the Rio Grande do Norte State, author of the action, filed a motion for clarification on this point, as well as requesting the modulation of the decision´s effects as of 2022.
Suspended since October 14 after a request for examination by Justice Dias Toffoli, the trial of the motions already has three votes in favor of postponing the effects of the decision until 2022, following the understanding of the reporting justice, Edson Fachin.
There is also a divergence opened by Minister Luís Roberto Barroso, who believes that the States should regulate, until the end of the year, the transfer of ICMS credits between establishments of the same owner located in different states. In the minister’s view, the absence of a regulation in this regard guarantees to taxpayers the transfer right as of 2022.
Although it is not possible to predict whether or not the Supreme Court will modulate the decision effects, it should be noted that modulation of effects, when it comes to tax matters, has become a recurrent procedure at the STF.