The ICMS Agreement 174/23 was approved last Tuesday, representing a significant advancement in tax regulation. This new measure allows establishments of the same taxpayer to transfer ICMS credits among themselves, a process that was subject to analysis by the Supreme Federal Court (STF) in the Direct Action of Unconstitutionality No. 49.
The agreement establishes clear guidelines for the appropriation of ICMS credits in interstate transfers, respecting the legislation of each state. The originating credits will be fully appropriated, ensuring the current tax benefits. It is important to note that, in the case of an ICMS credit balance at the sending establishment, this can be appropriated to the state of origin, in accordance with local legislation.
For the primary sector, there is special consideration, where the credit for non-industrialized goods will be calculated based on the cost of production, a detail that reflects attention to the particularities of each economic segment.
This agreement arrives as a fulfillment of the STF’s decision, under the rapporteurship of Minister Luiz Fux, which determined the need to regulate the transfer of ICMS credits for operations between establishments of the same owner. The STF’s decision, made in April of this year, indicated that the unconstitutionality of the incidence of ICMS in this type of operation would take effect from the fiscal year of 2024. This measure aims to ensure that, once the deadline is exhausted without proper regulation by the States, taxpayers will have the right to transfer these credits.
The text of the agreement is the result of intense negotiations and dialogues with the retail sector in recent months. The States showed willingness to listen and meet the demands of the sector, seeking a wording that met the needs of taxpayers in a balanced and fair manner.
This regulation is an important step towards greater efficiency and tax justice, and is expected to facilitate operations for taxpayers, while ensuring proper tax collection. The measure comes into effect from 2024, providing sufficient time for taxpayers and States to adapt to the new rules.