The Senate approved this Monday (12/20) the Complementary Bill (PLP) 32/2021, which aims to regulate the collection of the differential in tax rates (Difal) due on interstate remittances to end consumers who are not ICMS taxpayers. The PLP was approved in an extraordinary session, at the request of the governors, who fear that the bill will not come into effect in 2022. This is because, in order for it to take effect from next year, it is necessary to observe the principle of annual precedence, a principle according to which entities are prohibited from collecting the tax in the same financial year as the publication of the law that instituted or increased it. 

The PLP was edited to make effective the changes promoted by Constitutional Amendment No. 87/2015, especially in the form of charging the state tax, allowing the States of destination of the goods to charge a difference in ICMS rates on transactions destined for end consumers, whether or not they are taxpayers of the tax.  

The need and urgency for a complementary law to regulate the matter arose after the Federal Supreme Court (STF) decided, based on the analysis of two processes, one of general repercussion (RE No. 1,287,019) and a direct action of unconstitutionality (ADI No. 5,469) that: “The collection of the difference in the ICMS tax rate, as introduced by EC 87/15, presupposes the enactment of a complementary law containing general rules.” Before the STF ruling, the charge was made based on Confaz Agreement No. 93/15.  

In summary, PLP 32/2021 provides the following definitions: 

(i) in interstate transactions that send goods to non-taxpayers, the sender will be a taxpayer of the ICMS due to the destination State; 

(ii) in interstate remittances to non-taxpayers, the place of the transaction will be the sender's establishment “or where the service begins”; 

(iii) when the sender and recipient are located in States other than the one to which the goods are to be sent, the physical criterion (place of actual destination of the goods) will be adopted to determine which State is entitled to receive the Difal; 

(iv) the moment of the triggering event of the Difal will occur: (a) when the shipment is to a taxpayer, upon entry of the merchandise into their State; and (b) when the shipment is to a non-taxpayer, upon departure from the sender's establishment, and 

(v) the ICMS calculation basis.   

It is important to note that, although approved by the Senate, the PLP now needs to be sanctioned by the president. If approved this year, in addition to the annual prior notice, the principle of 90-day prior notice must be observed, which means that the law will only come into effect 90 days after its publication. At this point, resistance is expected from state tax authorities, which should lead to legal action on the matter.