The Federal Supreme Court (STF) decided that the authority to charge ICMS on imports belongs to the State where the taxpayer who acquired the goods abroad is established.
In the case of so-called order operations (por encomenda), the location of the importer prevails. In this modality, the products are acquired with the importer’s own resources and, in Brazil, resold to the clients who previously contracted the service. The article is from the newspaper Valor Econômico.
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In operations on account and order of third parties (por conta e ordem), situations in which the importer is contracted only to perform the customs clearance – it does not employ resources, nor does it carry out the foreign exchange contract – the State of the client is the one that may charge the tax.
These two import modalities are among the most practiced in the Country and gave rise to fierce disputes between the States of origin of the importers and those of destination of the goods. The STF’s decision, which is valid for all instances, should put an end to the disputes.
Lawyers state that there are a number of assessments applied mainly by the States of destination of the goods to their taxpayers – the clients of the importers located in another State – in the cases of order operations.
The charges generally occur in situations in which the goods go from the port directly to the client, that is, without first passing through the importer’s establishment. A provision of the Kandir Law served as the basis for these assessments.
ICMS on imports
It is provided in article 11 of the rule that, for the charging of ICMS-Import, “the establishment where the physical entry occurs” of the product must be considered.
For the justices of the STF, however, this provision cannot be applied to the so-called “order” operations. Justice Edson Fachin, rapporteur of the case, states, in his vote, that the Kandir Law “said less than it should have” on the subject.
This matter is dealt with in article 155 of the Federal Constitution. Edson Fachin interprets that one must take into account, for the charging of the tax, who acquired the goods abroad – whether the importer or the client – and not the place where they will be delivered.
“The dynamism of commercial relations does not allow for the requirement of the physical entry of the goods into the establishment of the acquirer-importer in order to configure the circulation of goods”, the justice states.
The decision was unanimous. This judgment took place in the STF’s virtual plenary and was concluded on April 27. The ruling (acórdão), as of yesterday (05/12), had not been published (ARE 665134).
Source: Valor Econômico (05/13/20)
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