The Supreme Court (“STF”) decided on the constitutionality of a Complementary Law regulating ICMS credits, so that there is no violation of the value-added principle. In such opportunity, the STF established the following thesis (theme 346 of General Repercussion): “(i) It does not violate the value-added principle (art. 155, §2º, items I and XII, letter c, of CF / 1988) complementary law that extends the date for offsetting ICMS credits related to goods acquired for use and consumption at the taxpayer’s own establishment; (ii) According to article 150, III, c, of CF / 1988, the principle of 90-days anteriority applies only to laws that impose or increase taxes, not affecting the rules that extend the starting date of the tax credit offset”.
Based on the understanding that immunity for exportations does not cover the entire chain of production of goods, the STF established the following thesis (theme 475): “The immunity referred to in art. 155, § 2º, X, “a”, of the CF does not reach operations or transactions prior to the exportation itself.”
When analyzing RE 628075, regarding the possibility of the destination state to deny the buyer the right to credit the ICMS when the origin state granted an unilateral tax benefit to the taxpayer, the STF set the following general repercussion thesis (theme 490): “The proportional reversal of ICMS credit by the State of destination, due to the presumed tax credit granted by the State of origin without authorization from the National Council for Tax Policy (CONFAZ), does not violate the constitutional value-added principle.”
The STF Plenary, when analyzing RE 600867, set the following general repercussion thesis (theme 508): “Mixed-capital company, which shares are traded on Stock Exchanges, and which, unequivocally, is aimed at remunerating the capital of its controllers or shareholders, is not covered by the tax immunity rule provided for in art. 150, VI, ‘a’, of the Constitution, solely because of the activities performed”.
The STF, in the RE 796376, which questioned the reach of the tax immunity related to the Property Transfer Tax (ITBI) in capital contributions with real estate, defined, in general repercussion (theme nº 796) that: “Immunity in relation to Property Transfer Tax (ITBI), provided for in item I of § 2 of art. 156 of the Federal Constitution, does not reach the value of the real estate that exceeds the limit of the share capital to be paid in.”
The STF, in the RE 748543,established the following general repercussion thesis: “Article 155, § 2, X, b, of the CF / 1988; the State of destination is entitled to the entire ICMS on the interstate operation of supply of electricity to the final consumer, for use in the industrialization process, and the State of origin is not entitled to collect said tax”.
The Supreme Federal Court, when analyzing RE nº 878313 ruled in general repercussion that (theme 846): “The social contribution provided for in article 1 of Complementary Law No. 110, of June 29, 2001, is constitutional, in view of the persistence of the purpose for which it was instituted”. The argument was that the fiscal shortcoming for which it had been created no longer existed, making the charge unconstitutional.
When analyzing the constitutionality of the fine for lack of filing or late filing of the DCTF, calculated as a percentage of the taxes declared in such statement, the STF established the following general repercussion thesis (theme 872): “The sanction provided for in article 7, item II, of Law 10.426 / 2002 is constitutional, in the absence of an offense to the principles of proportionality and the prohibition of taxes with a confiscatory effect”.
The STF decided that the IPI levied at the customs clearance of industrialized products, as well as on their resale in the domestic market is legitimate. In such an opportunity, the STF established the following thesis (theme 906): “The incidence of the Excise Tax – IPI is constitutional in the customs clearance of industrialized goods and in the exit of the importing establishment for resale in the domestic market”.
The STF decided, in general repercussion (theme 985) that: “The incidence of social contribution is legitimate on the amount paid by employers as the one third additional of vacations”.
When analyzing ARE 1255885, the STF Plenary reaffirmed its understanding and set the following thesis (theme 1099): “ICMS is not due in the transfer of goods from one establishment to another of the same taxpayer located in different states, since there is no transfer of ownership or the performance of an act of mercancy.” This decision has very deep implications, as the current system of credits and debits of the ICMS is designed for taxable transfers. The legislation of all States will have to be adapted to this decision, affecting logistics chains.