2023-10-27 22:10:44
© Reuters. STF forms majority to reject action against retroactive collection of ICMS in retail
The Federal Supreme Court (STF) formed a majority to reject the appeal in the process that deals with the use of ICMS credits in the transfer of goods. For the rapporteur, Edson Fachin, the author of the appeal, Sindicato Nacional das Empresas Distribuidoras de Combustíveis e de Lubrificantes (Sindicom), does not have the legitimacy to file an appeal in the action. He has been followed by five ministers to date. The trial ends this Friday, 27th, at 11:59 pm.
In 2021, the Supreme Court prohibited the levy of ICMS on the shipment of goods between units of the same company located in different States. The impact on retailers was negative, because companies use the credits resulting from this charge to balance cash between their units and reduce the tax burden.
In April, when judging the first appeal against the decision, the ministers defined that the end of the incidence of ICMS will be valid from 2024. The deadline, however, does not apply to taxpayers who had gone to court by the date of the judgment on the merits. , in 2021.
The appeal now analyzed seeks to avoid the retroactive collection of ICMS. For the union, the STF’s ruling was not clear regarding the legal situation of companies that failed to collect the tax without legalizing the demand and those that went to court after the trial date to avoid collection. If the action is rejected due to appeal illegitimacy, the request itself should not be analyzed by the ministers.
According to the union, there was already jurisprudence not to pay ICMS when sending goods, which “generated a legitimate expectation and confidence in several taxpayers”. Therefore, the entity argues that “the right of taxpayers who did not pay ICMS on transfers of goods between their own establishments, whether or not supported by a court decision, must be protected.”
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