The Federal Supreme Court (STF) resumes this Friday (12/10) the trial of the declaratory appeals in the Declaratory Action of Constitutionality (ADC) No. 49, which removed the collection of ICMS on the transfer of goods carried out between establishments of the same owner.

The case was tried in April of this year, when the STF declared some provisions of the Kandir Law (Complementary Law No. 87/1996) unconstitutional. Unanimously, the ministers dismissed the sections that provided for the incidence of ICMS “even for another establishment of the same owner”. In the Court's understanding, the simple movement of goods between establishments of the same company does not constitute a taxable event.

The section that defined “each establishment under the same owner as autonomous” was also declared unconstitutional, and the decision did not clarify the scope of this autonomy. In view of this, the State of Rio Grande do Norte, the plaintiff in the action, filed a motion for clarification requesting clarification on this point, as well as requesting that the effects of the decision be modulated as of 2022.

Suspended since October 14 after a request for review by Minister Dias Toffoli, the judgment of the embargoes already has three votes in favor of postponing the effects of the decision until 2022, following the understanding of the rapporteur minister, Edson Fachin.

There is also an open divergence by Minister Luís Roberto Barroso, who believes that states should regulate, by the end of the year, the transfer of ICMS credits between establishments with the same owner located in different states. In the minister's view, the lack of regulation in this regard guarantees taxpayers the right to transfer as of 2022.

Although it is not possible to predict whether or not the Supreme Court will modulate the effects of the decision, it is worth noting that the modulation of effects in tax matters has proven to be a recurring procedure in the STF.