22 February 2016
The minister of the Brazilian Supreme Court, Dias Toffoli, has provided an injunction suspending the effects of clause 9 of ICMS Convention No. 93/2015 under the Direct Action of Unconstitutionality No. 5464, which establishes procedures on interstate transactions of goods and services destined for final consumers that are non- taxpayers of ICMS.
Through this preliminary decision, the companies that have adopted Simples Nacional Regimen are no longer subject to the new ICMS system of calculation introduced by Constitutional Amendment No. 87/2015 and Convention No. 93/2015.
The Minister, by providing this decision, has recognized that the Convention not only violated the jurisdiction of the complementary law but also represents a serious risk of damages to the taxpayers under Simples Nacional Regime in relation to loss of competitiveness and commitment to its activities.
The Direct Action of Unconstitutionality, filed by OAB (Brazilian Bar Association), argues that clause 9 of the Convention is not in compliance with the special tax treatment constitutionally granted to micro and small businesses. In addition, the National Finance Policy Council –CONFAZ has also exceeded its jurisdiction by regulating a matter with specific provision in Complementary Law No. 123/2006.
Moreover, it is important to stress that the constitutionality of the entire text of Convention No. 93/2015 will be further analyzed by Minister Dias Toffoli, who is also the Reporting Minister of ADI No. 5469, filed by Brazilian Association of Electronic Commerce (Abcomm). Abcomm affirmed that the Convention is not an appropriate normative rule to regulate tax events and the calculation basis of ICMS, which is subject to complementary law regulation.