Minister André Mendonça, of the Federal Supreme Court (STF), overturned this Friday (13), a decision by the National Council for Finance Policy (Confaz) that defined the ICMS rates that each state charges on diesel.
The magistrate answered a request from the Jair Bolsonaro government, which, through the Attorney General’s Office (AGU), went to the Supreme Court to question the disrespect for the law that established a single tax rate for all states, in reais per liter, charged only at the production stage.
Mendonça pointed out that, as of his decision, “27 different ICMS rates will no longer be accepted, which represents uniformity and a reduction in the value of fuel and less fluctuation in prices”.
Complementary Law No. 192, of 2022, of March, implemented the so-called single-phase collection and the uniformity of the rate in the taxation of fuels by ICMS. It also provided for a transition period, until the end of the year, so that states could set a rate equivalent to the average of the last 60 months – which, in practice, would represent a drop in the current tax burden on fuel.
But, in a meeting at the end of March, the National Council for Finance Policy (Confaz) decided to establish a single rate of R$ 1.006 per liter, allowing each state to establish a discount to reach its current rate. In the government’s assessment, there was, in practice, no change in the amount charged by state governments.
In his decision, Mendonça says that “the complexity and relevance of the issue” justifies the “urgency” so that “the construction of an effective, perennial and consistent solution with the constitutional parameters regulating the matter begins immediately”.
According to the minister, the states’ decision constituted a “patent violation” of the Constitution.
The price of fuel was readjusted again at Petrobras refineries on Monday (9), culminating in the dismissal of Bento Albuquerque from the Ministry of Mines and Energy.
In the request to the Supreme Court, the AGU stated that “the strong asymmetry of ICMS rates gives rise to problems that go far beyond the integrity of Brazilian fiscal federalism, especially burdening the final consumer, who ends up penalized with the high cost generated by excessive rates for fuels — which are essential inputs, and therefore should be treated with modesty — and with the difficulty in understanding the composition of the final price of these products”.
The president of the National Committee of Secretaries of the Treasury, Finance, Revenue or Taxation of the States and the Federal District (Comsefaz), Décio Padilha, told the reporter of CNN Juliana Lopes that the body will appeal the decision.
Request
The AGU (Advocacy General of the Union), at the request of the Presidency of the Republic, sued the STF (Supreme Federal Court) against suspension of the agreement of Confaz (National Council of Finance Policy) that defined the ICMS policy of the states on diesel. The government’s maneuver was anticipated by the analyst of CNN Caio Junqueira on the 5th of this month.
André Mendonça was the rapporteur of the action.
The AGU claimed that the Confaz agreement adopts “an unorthodox ‘equalization factor’ of the tax burden for each state”, to “adapt the ICMS collection of the States and DF to the new single-phase taxation model”.
“The present direct action is intended to challenge clauses four and five, as well as the respective Annex II, of ICMS Agreement No. Tax on Operations Related to the Circulation of Goods’ and on ‘Provisions of Interstate and Intermunicipal Transport and Communication Services’ [ICMS] on diesel oil and defines the applicable rates”, says the direct action of unconstitutionality that the AGU filed with the STF.
On March 24, the State Finance Secretaries approved the “ICMS Agreement”, which regulates the collection of the tax for diesel oil. The proposal creates a rate with a standard fixed cost per liter and extends the freeze on the state tax on gasoline, ethanol and cooking gas for another 90 days. Thus, the measure remains in force until June 30th, and the new rules take effect on the following day: July 1st.
The decision was taken at an extraordinary meeting of Confaz. Under the agreement, the state rate for the liter of S10 diesel oil, the most widespread in the country at the moment, was set at a ceiling of R$ 1.006, calculated using the reference value of November last year.
According to the AGU, the strong asymmetry of ICMS rates “gives rise to problems that go far beyond the integrity of Brazilian fiscal federalism”.
“Mainly burdening the final consumer, who ends up penalized with the high cost generated by excessive rates for fuels – which are essential inputs, and therefore should be treated with modesty – and with the difficulty in understanding the composition of the final price of these products ”, said the AGU.
*With information from Gabriela Coelho, from CNN, in Brasília
Source: CNN Brasil

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