Complementary Law 204 was passed in December 2023, with the aim of removing ICMS from transactions between establishments of the same taxpayer.
The new law is in line with the understanding established by the Federal Supreme Court (STF) in the Declaratory Action of Constitutionality (ADC) No. 49, which recognized that ICMS is not levied on transactions with goods carried out between establishments of the same taxpayer, even if they are located in different states. The judgment also ensured the right to maintain credit for previous transactions, as well as the transfer of credit between such establishments.
In other words, as well as expressly providing for ICMS not to be levied on these operations, the new law also allows taxpayers to use credits relating to previous operations, which will be guaranteed by the destination state of the goods through the transfer of credit.
The amount must be limited to the value resulting from the application of the interstate rates on the value attributed to the displacement operation. If there is a positive difference between the credits previously accumulated and the interstate rate, they will be guaranteed by the state of origin.
It is important to highlight two important points. The first relates to the presidential veto on equating goods transfer operations with an ICMS taxed operation, leaving the taxpayer to choose whether or not to tax such operations.
The second point concerns the sanctioned provisions, since, although there is no express provision in the law about the obligation to transfer the credits, ICMS Agreement 178/2023 (which is still in force) obliges the taxpayer to highlight the ICMS in interstate shipping operations for the purposes of transferring the credits relating to previous operations. This is an agreement published before LC 204/2023, whose constitutionality is doubtful and which now conflicts with the complementary law itself.
In this sense, it should be noted that even if the LC does not oblige the taxpayer to make such a detachment of tax, in the event of non-compliance, the tax authorities may apply the appropriate sanctions, which in itself indicates that entrepreneurs should pay attention to the aforementioned legal provisions in concurrence (LC and Agreement).
As you can see, the law that was passed tried to provide some security for taxpayers when carrying out these operations, but it is certain that the issue will still have new developments, largely because the rule came into force recently, as well as because the criteria for transferring credits are not yet well defined.
In addition, the motions for clarification filed in ADC 49 are still pending judgment, which aim to define: the possibility of the taxpayer choosing to use the credits (origin or destination) and the extension of the period for modulating the effects of the decision in ADC (until the 2025 financial year).
If you have any questions on the subject, our tax team is available to answer them.
