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ICMS Convention nº. 190/17 – Rules for the revalidation of ICMS Tax Benefits

18Dez2017Dec18,2017
Tax
Today, the Official Gazette of the Federal Executive published ICMS Convention nº. 190 approved on December 15, 2017 regarding the remission of tax credits, whether or not constituted, relating to exemptions, incentives and fiscal or financial-fiscal benefits granted in conflict with the provisions of item "g", XII of paragraph 2 of article 155 of the Federal Constitution, and regarding the corresponding reinstitutions.

ICMS Convention nº. 190/17 was approved in compliance with Supplementary Law nº. 160/2017 in order to minimize the effects of the Tax War caused by tax benefits granted without observing the constitutional provisions and without consulting National Council of Finance Policy – “CONFAZ”, composed by all States representatives. We outline below an overview of the main provisions established by ICMS Convention nº. 190/17.

Obligations of the States and the Federal District 

For the remission, amnesty and / or reinstitution of fiscal benefits, the states and the Federal District must comply with the following obligations: (i) to publish, in the respective official gazette, the list of normative rulings, whether or not in force, regarding the tax benefits granted without consulting CONFAZ; and (ii) to register and deposit with the Executive Secretariat of CONFAZ the supporting documentation related to the formal grant of tax benefits, including the respective normative rulings, as well as their publication in the National Tax Transparency Website.

In this regard, the following deadlines were established for compliance with the obligations of the states and the Federal District (FD):

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CONFAZ may authorize the extension of the deadline for compliance with the obligations until December 28, 2018, in specific cases, upon a simple majority quorum.

Legislative acts that have not been published, registered and deposited must be revoked by the states and the Federal District by December 28 2018.


National Tax Transparency Website

Institution of the National Tax Transparency Website to be accessed through the CONFAZ website. The information and documentation as to the granting of the tax benefits will be published on such website and access will be restricted to the tax authorities of the states and the Federal District.


Update of information relating to Tax Benefits 

For every alteration in tax benefits, the states and the Federal District must provide the Executive Secretariat of CONFAZ with updated information by the last working day of the month subsequent to the publication of the normative or concessionary ruling that granted, modified or revoked the tax benefit.

Remission and Amnesty

The Convention determines the remission and amnesty of ICMS tax credits, whether or not constituted, arising from the fiscal benefits granted without consulting CONFAZ by legislation enacted by the states or the Federal District and published up to August 8, 2017, as well as those judicially deconstituted or arising from reinstitutions enacted between August 8, 2017 and December 28, 2018.

Based on the approved wording, the remission and the amnesty are conditional upon the withdrawal: (i) of lawsuits or motions in respect of tax foreclosures relating to the tax credits, with a waiver of the right on which they are based and the full discharge by the taxpayer of the costs and other procedural expenses; (ii) of challenges, defenses and administrative appeals filed by the taxpayer; and (iii) by the taxpayer's lawyer of claims against the states and the Federal District for any award of fees.

Reinstitution of Tax Benefits 

The Convention authorizes the states and the Federal District to reinstitute, by December 28, 2018, the tax benefits published up to August 8, 2017 which are still in force, provided the Executive Secretariat of CONFAZ is informed. If there is no reinstitution, the states and the Federal District must revoke, by December 20, 2018, the respective legislation that granted the tax benefit.

Upon compliance with the requirements of the Convention, the grant of new tax benefits and the reinstitution of those already in force shall only remain in effect for a certain period, depending on the business sector benefited. The maximum deadlines established are as follows:

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The states and the Federal District may, at any time, revoke or modify the normative and / or concessive legislation relating to the tax benefit, provided that: (i) it does not result in tax benefits in an amount greater than that which the taxpayer enjoyed prior to the modification of the legislation; and (ii) does not remove or reduce the conditions established in the legislation in force on August 8, 2017, on which the concessionary ruling is based.

Extension and Grant of Tax Benefits

According to the Convention, the states and the Federal District may extend the concession of the existing tax benefits to other taxpayers based in their respective territory on the same conditions and within the time limits for the benefit.

It is also possible for states and the Federal District to grant reinstituted tax benefits, granted or extended by another state in the same region or the Federal District, provided that they comply with the requirements of the Convention and apply, at a maximum, for the same periods and on the same conditions as the ruling in force at the time they are granted. 

Withdraw of penalties

Based on the wording approved, the remission or non-constitution of tax credits granted by law of the states or the Federal District, according to the origin of the merchandise, good or service, shall not cause: (i) the nullity of the ruling and the ineffectiveness of the tax credit attributed to the acquirer of the merchandise; and (ii) the enforceability of the unpaid or returned tax, or the invalidity of the law or act granting the corresponding debit remission.

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