EN 
PT_BR 
ABSOLAR (Brazilian Photovoltaic Solar Energy Association) may file a writ of mandamus to protect the solar sector from possible ICMS charges until ICMS Agreements No. 101/1997 and No. 114/2017 are updated in accordance with the new Harmonized System 2022.
The association met last week with GT 26 of CONFAZ and the Federal Revenue Service.
According to Rodrigo Sauaia, executive president of ABSOLAR, these meetings “presented the risks that the lack of updating agreements represent for the photovoltaic solar sector and the importance of updating them, before April 2022, when the new NCMs come into effect applied to the sector”.
Among the risks are increased costs for companies and consumers, delays in commercial operations and delays in works and deliveries of equipment and systems.
Also according to the executive, the GT 26 was sensitive to ABSOLAR's request and willing to evaluate the update. Regarding the meeting held with the Federal Revenue, Sauaia highlighted that “Exception 01 – Solar cells” will be considered to maintain the IPI exemption for photovoltaic modules. Photovoltaic generators already have zero IPI according to the new IPI Table published by the Ministry of Economy at the end of 2021.
“The Federal Revenue confirmed that the inclusion of Exception 01 – Solar cells – along with the new NCM for photovoltaic modules aims to allow the sector to continue enjoying the IPI exemption on photovoltaic modules, that is, a zero IPI rate for the sector”, he clarified.
Sauaia also pointed out that, according to the Federal Revenue Service, it is necessary to include additional information in the appropriate fields. Another important point raised consists of pointing out the existence of a specific field in the DIs (Import Declarations) to indicate Exception 01, in addition to the observations field that must be used to place additional information.
writ of mandamus
According to Canal Solar's investigation with ABSOLAR, a new possibility being evaluated by the entity to guarantee the 0 ICMS rate for photovoltaic equipment and systems was discussed by the association last Friday (25).
At this meeting, the possibility of addressing this issue via writ of mandamus with the State Finance Departments was raised. According to ABSOLAR, during the meeting it was pointed out that the Agreement ICMS nº 117/1996 serves as a safeguard against not updating the Agreement ICMS nº101/1997 in the signatory states. Therefore, one option would be to file the action in Minas Gerais and Santa Catarina, the only states that are not signatories to Agreement No. 117/1996.
On the other hand, it was pointed out that the mere existence of such an agreement does not guarantee that tax auditors will properly apply the ICMS exemption in any inspection. Another suggested solution was for the members in each state, or ABSOLAR, to file an administrative claim with the Secretariats in light of Agreement No. 117/1996. However, this movement would have no guarantee of a response and the writ of mandamus would be more effective.
Now, the association is evaluating with its members which states would be included in the eventual measure, to rationalize costs of the process. Associates who want to contribute to the topic must send their suggestions to ABSOLAR by Friday (04/03), through the technical-regulatory department.
