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FEDERAL SUPREME COURT (STF) SUSPENDS NEW ICMS RULE

On January 2, a preliminary injunction was partially granted by Justice Carmen Lúcia, President of the Federal Supreme Court (STF), suspending the effect of ten clauses contained in ICMS Agreement n. 52/2017, which amends the rules of the collection of ICMS (Tax on Circulation of Goods and Services) in the regime of tax substitution.

As the agreement became effective on January 1, she identified the urgency of the issue, and highlighted the impossibility of postponing the analysis, considering the risks arising during the Court recess, emphasizing possible impacts to the productive sector which hardly  would be reversed.

Furthermore, according to the Justice, the new rules should’ve been carried out by means of a national supplementary Law, which is the right vehicle for guidelines involving ICMS, according to the Brazilian Constitution.

The decision was enacted in the Unconstitutionality Motion (ADI) 5,866, plead by the National Confederation of Industry (CNI), which requests the complete annulment of the agreement, claiming that the changes create double taxation and could only be carried out through a supplementary law. Although CNI and taxpayers are celebrating the decision, the case will be definitively voted by the STF on the return of its recess.

RSM is available to assist in any questions arising from this matter.

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CONTACTS:

Marcelo Sampaio
Partner | National Tax Leader
[email protected]