03/04/2013
War Tax: State government questions benefits of ICMS Autor: STF
The Governor of the State of São Paulo, Geraldo Alckmin, filed in the Supreme Court (STF) eight Direct Actions of Unconstitutionality (ADI), a preliminary injunction against decrees of the states of Rio de Janeiro, Espirito Santo and Mato Grosso granting benefits tax Tax on Circulation of Goods and Services (ICMS) for operations with specific products. The governor argues that this kind of tax relief could only be performed by law and only after authorization from the other states and the Federal District through an agreement.
In stocks, the Sao Paulo Governor denies decrees published by state governments that grant tax benefits to different sectors, from agribusiness to buy up raw materials for basic industries, such as copper. There are six actions against decrees of Rio de Janeiro (ADIs 4929, 4930, 4931, 4932, 4933, 4934), a government decree against capixaba (ADI 4935) and last against the decree issued by the government of Mato Grosso (ADI 4936).
In all of them the governor of Sao Paulo state argues that the decrees against constitutional principles relating to the political, administrative, economic and tax, to force the "illegitimate drain investment" for the state granting tax benefits, causing irreparable damage to economic and social for the State of São Paulo and other Brazilian states.
The ADIs point violation, among others, Article 152 of the Federal Constitution, which prohibits states and the Federal District, the establishment of tax differences between goods and services because of their provenance. He argues further that the exonerations without permission of the other units of the federation contrary to Supplementary Law 24/1975, type approved by the Federal Constitution of 1988, which regulates the granting of exemptions from GST.
Rio de Janeiro
In the case of Rio de Janeiro, São Paulo's government decrees that address questions of presumed credits and the reduction of VAT on the value of commercial operation; decreasing the basis for calculating the tax deferral and special because of origin for the ICMS .
ADI in 4929, are questioned Decrees 43503 and 43502, both of March 2012, establishing ICMS tax benefits directed to industry parts and components copper. The rapporteur is the minister Rosa Weber. In the ADI 4930, under reported by Dias Toffoli minister, the state government seeks a declaration of unconstitutionality of provisions of Book V of the ICMS Regulation of Rio de Janeiro as amended by Decree 38.746/2006 referring to operations output for salt supply.
Through ADI 4931, the government of SP questions devices 43.457/2012 Decree granting tax benefits to the sector of 'industrialization bus', by granting deemed credit of 3% on outputs bus, truck bodies, parts and industrial components and / or manufactured, that there has been no resolution of the Board Policy (Confaz), as provided in Article 155, paragraph 2, section XII, letter 'g', of the Federal Constitution. The rapporteur of this action is the Minister Celso de Mello.
With similar arguments in defense of tax equality, ADI 4932 denies alleged grant of deemed credit of 4% to wholesalers P & G Group, calculated on the amount of GST payable by reason of interstate exits. Thus, calls to action on interim suspension, with subsequent declaration of unconstitutionality of devices contained in Decree 41.483/2008, with amendments to Decree 43518 and 43942, both of 2012. The action is under reported by Minister theoretical Zavascki.
ADI in 4933, the minister reported by Dias Toffoli, the government asks SP devices Decrees of 35,418 and 35,419, 2004, granting deemed credit of GST and tax treatment for special operations with commercial perfumes, cologne, shampoos, makeup and others of its kind manufactured in Rio de Janeiro. In the lawsuit, the governor asks the Supreme Court gives interpretation to the Constitution as some devices attacked to prevent any declaration of unconstitutionality may jeopardize other tax benefits granted through agreements concluded under Confaz and "who are under the Federal Constitution. "
Since the special tax treatment for the production of ethanol and sugar in the State, namely the granting of credits assumed that reduce tax incidence for 2% of the value of transactions in the territory of Rio de Janeiro and benefits for procurement of goods for the production process are being addressed by the government of SP by ADI 4934. The rapporteur of this action is the Minister Celso de Mello.
Holy Spirit
ADI in 4935, the governor of St. Paul argues that the State of Espirito Santo established through provisions of Decree 1.090-R/2002 and subsequent amendments, the possibility of cancelation of debt GST at the rate of 33%, the establishments wholesale trade, for interstate or marketing aimed at industrialization. According to the lawsuit, after the use of credit due, the payment of the tax will be equal to 1%. The rapporteur is Gilmar Mendes.
Mato Grosso
The ADI 4936, questions devices ICMS Regulations of the State of Mato Grosso, with change given by Decree 563/2011, 604/2011 and 719/2011, which allow the granting of deemed credit in the amount of tax due on interstate meat , bovine and bufaline and edible offal of various genres and types. The rule applies to operations performed by slaughterhouses and abattoirs installed in the state and the assumed credit is 50%. The process is under reported by Dias Toffoli minister.
