The Federal Supreme Court declares the unconstitutionality of provisions of Complementary Law 87/1996 (Kandir Law) that provide for the occurrence of a triggering event for ICMS on the interstate transfer of goods between establishments of the same taxpayer.
The decision was rendered in a virtual session concluded on the 16th in the trial of the Declaratory Action of Constitutionality (ADC) 49, in which the government of Rio Grande do Norte sought the validation of the levy.
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STF decides dispute over ICMS on imports
In his vote, the reporting judge verified that the legal requirements for the processing of the ADC are fulfilled, especially the demonstration of the existence of a relevant judicial controversy. “As demonstrated by the petitioner, there are various decisions rendered, both in Superior Courts and in Courts of Justice, that run counter to what is provided for in Complementary Law 87/96.”
Case law
With respect to the merits, the justice pronounced for the dismissal of the request, pointing out that the case law of the STF is that the physical circulation of goods does not generate the levy of the tax, since there is no transmission of possession or ownership of assets.
He emphasized that the Supreme Court also concluded that the displacement of goods between establishments of the same owner, by not generating legal circulation, does not generate a tax obligation.
The hypothesis of levy of the tax, he explained, is the legal operation carried out by a merchant that entails the circulation of goods and the transmission of their ownership to the final consumer.
“The mere displacement between establishments of the same owner, in the same federated unit or in different units, is not a triggering event for ICMS, this being the understanding consolidated in this Court,” he emphasizes.
Goods between establishments – same taxpayer
The justice reinforced that the Plenary of the STF, in the analysis of the Extraordinary Appeal with Interlocutory Appeal (ARE) 1255885 (Theme 1099 of general repercussion), in August of last year, established the following thesis: “ICMS does not apply to the displacement of assets from one establishment to another of the same taxpayer located in distinct states, given that there is no transfer of ownership or the performance of an act of commerce.”
Result
In this way, the Plenary ruled the ADC unfounded, declaring the unconstitutionality of articles 11, paragraph 3, item II, 12, item I, in the excerpt “even if to another establishment of the same owner,” and 13, paragraph 4, of Complementary Law 87/1996.
Source: STF
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