Toffoli signals new ICMS judgment to avoid R$27 billion breach in 2022

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Justice Dias Toffoli, of the Federal Supreme Court, said this Wednesday (1) that he must comply with the request of the governors and ask for a new trial date on the decision of unconstitutionality of the higher rate of ICMS (Tax on Circulation of Goods and Services) for the electricity and telecommunications sectors.

Toffoli declared that he will ask the president of the STF, Minister Luiz Fux, to schedule a session of the extraordinary virtual plenary this month for a definition of the case. The minister passed the message on to governors and state representatives on Wednesday (1), at a meeting at the Supreme Court.

Ministers Alexandre de Moraes and Gilmar Mendes also participated in the meeting. Rapporteur of the case at the Supreme Court, Toffoli said that he must present a modulation of effects (that is, a modification in the decision) in order to establish that the decision will only have effects from 2024.

The request was made by the governors, who allege that the immediate imposition would have an unexpected negative impact on state and municipal budgets, many of which have already been analyzed by the assemblies and municipal chambers. Ceará Governor Camilo Santana (PT) said after the meeting, that the three ministers participating in the meeting demonstrated a willingness to accept the request made by the governors for the effects to be valid from 2024, when the Pluriannual Plan (PPA) ends.

The plan is the medium-term governmental planning instrument that establishes, in a regionalized manner, the guidelines, objectives and goals of the public administration. Lasting four years, starting at the beginning of the second year of the term of the head of the Executive Branch and ending at the end of the first year of his successor, the PPA is organized into programs that result in goods and services for the population.

“So there is a willingness of ministers to accept this decision. Of course it will be taken to the other ministers. We are also going to visit the other ministers so that this decision to modulate the effects of the decision starts only in 2024, when the PPA ends”, said Santana.

“The discussion was about the modulation of the effects of this decision, because if the effects are immediate, as of January, this generates an impact on the public accounts not only of the states, but of the municipalities, for which the ICMS is distributed. The finance department carried out a survey, [o impacto] it is something around R$ 27 billion in public accounts”, said the governor.

By 8 votes to 3, the Supreme decided, in a vote in the virtual plenary closed last week, that it is unconstitutional to institute higher ICMS (state tax) for electricity and telecommunications. The specific case analyzed was that of the state of Santa Catarina, which applies an ICMS rate of 25% for the sectors, against 17% as the general rate. The governors will discuss the modulations of the effects of the STF decision, that is, how the decision of the Supreme Ministers will be applied from now on.

Reference: CNN Brasil

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