EN 
PT_BR 
By Marina Meyer and Marcelo Tanos
With the publication of Complementary Law No. 186/2021, on 10/28/2021, Complementary Law No. 160/2017 was amended in order to authorize States to extend the period for enjoyment of benefits and tax incentives – linked to the Operations Tax Relating to the Circulation of Goods (ICMS) – for 12/31/2032.
Through ICMS Agreement No. 68/2022, ICMS Agreement 190/2017 was amended, which deals with the remission of tax credits, constituted or not, resulting from exemptions, incentives and tax or financial-fiscal benefits, authorizing States to grant or extend them until 12/31/2032.
The effective extension is extremely relevant for several activities whose tax incentives should end before 2032, such as commercial activities, which would have incentives in force until December 2022.
Understand the case
Aiming to resolve the tax war and the corresponding mitigation of its effects, the Federal Government issued Complementary Law No. 160/2017 authorizing the reinstitution of tax benefits established in non-compliance with the Federal Constitution, as well as granting the authority to issue a specific agreement with the purpose of covering the matter in more detail.
In this context, ICMS Agreement No. 190/2017 was published, providing the procedures necessary for the refund of tax benefits granted without authorization from the National Council for Financial Policy – CONFAZ.
Repeating the normative command provided by Complementary Law No. 160/2017, ICMS Agreement No. 190/2017 assigned final deadlines for the enjoyment of tax benefits relating to the tax in question, granted or extended, varying according to the destination of the tax incentive, which is It originally gave the following meaning:
“Clause ten – The federated units that published the acts and that met the requirements set out in the second clause are authorized to grant or extend tax benefits, in accordance with the acts in force on the date of publication of the national ratification of this agreement, as long as the corresponding period of enjoyment does not exceed:
- I – December 31, 2032, regarding those intended to promote agricultural and industrial activities, including agro-industrial, and investment in road, waterway, railway, port, airport and urban transport infrastructure;
- II – December 31, 2025, regarding those intended for the maintenance or increase of port and airport activities linked to international trade, including the operation subsequent to the import, carried out by the importing taxpayer;
- III – December 31, 2022, regarding those intended for the maintenance or increase of commercial activities, provided that the beneficiary is the actual sender of the merchandise;
- IV – December 31, 2020, regarding those intended for interstate operations and services with fresh agricultural and plant extractive products;
- V – December 31, 2018, as for the others.
As can be seen from the aforementioned items, for the commerce segment, although extremely relevant for national supply, it was originally established that the final deadline for fruition would be in December/2022, while, for the industry segment, it would be in December/2032.
That said, it should be noted that the Federal Senate approved, on 10/06/2021, the Complementary Law Project – PLP nº 05/2021 to allow the extension, for up to 15 (fifteen) years, of tax benefits linked to ICMS intended (i) the maintenance or increase of commercial activities - as long as the beneficiary is the actual sender of the merchandise, (ii) interstate services with fresh agricultural and plant extractive products and (iii) the maintenance or increase of port activities and airport operations linked to international trade, including the operation subsequent to the import, carried out by the importing taxpayer.
Continuously, following the formal procedures, it is noteworthy that the matter was forwarded for presidential sanction, culminating in the publication of Complementary Law No. 186/2021, which amended Complementary Law No. 160/2017 in order to authorize the States to extend, to 31 /12/2032, the period for enjoying the benefits and tax incentives linked to the Tax on Operations Relating to the Circulation of Goods – ICMS, otherwise let's see:
“Art. 3º The agreement referred to in art. 1 of this Complementary Law will meet, at least, the following conditions, to be observed by the federated units:
§ 2 The federated unit that published the concessional act relating to exemptions, incentives and tax or financial-fiscal benefits linked to the ICMS referred to in art. 1st of this Complementary Law whose publication, registration and deposit requirements, under the terms of this article, have been met, is authorized to grant and extend them, under the terms of the act in force on the date of publication of the respective agreement, and its term cannot be fruition exceed:
- I – December 31st of the fifteenth year following the production of effects of the respective agreement, regarding those intended to promote agricultural and industrial activities, including agro-industrial, and investment in road, waterway, railway, port, airport and urban transport infrastructure , as well as those destined for temples of any cult and to charitable social assistance entities;
- II – December 31st of the fifteenth year following the production of effects of the respective agreement, regarding those intended for the maintenance or increase of port and airport activities linked to international trade, including the operation subsequent to the import, carried out by the importing taxpayer;
- III – December 31st of the fifteenth year following the production of effects of the respective agreement, regarding those intended for the maintenance or increase of commercial activities, provided that the beneficiary is the actual sender of the merchandise;
- IV – December 31st of the fifteenth year following the production of effects of the respective agreement, regarding those intended for interstate operations and services with agricultural products and fresh plant extractives;
- V – December 31st of the first year after the respective agreement takes effect, as for others.
Subsequently, it appears that ICMS Agreement No. 190/2017 was adapted to the terms of Complementary Law No. 186/2021 through the recent ICMS Agreement No. 68/2022, authorizing States to grant or extend exemptions, incentives and tax benefits or financial-fiscal until 12/31/2032, in the exact terms of Complementary Law No. 186/2021.
Additionally, there must be a reduction in 20% (twenty percent) per year, from 01/01/2029, of the right to enjoy exemptions, incentives and tax benefits linked to ICMS, as well as the deadline of 180 (one hundred and eighty days) to adapt ICMS Agreement No. 190/2017, counting from the date of publication of Complementary Law No. 186/2021.
Exemption from ICMS on energy from micro and mini generator units
Let us take as an example the State of Minas Gerais, which, based on the premise conferred by Complementary Law No. 160/2017 and ICMS Agreement No. 190/2017, published State Law No. 22,549, published on 07/01/2017, which was object of registration and deposit - Certificate SE/CONFAZ nº 50/2018 - before the Executive Secretariat of CONFAZ, under the terms of items I and II of Clause Two of ICMS Agreement nº 190/2017, with the corresponding supporting documentation, understood as such act and its possible amendments.
Thus, ensuring the applicability and effectiveness of State Law No. 22,549/2017, it is noted that the State of Minas Gerais, extrapolating the rule of CONFAZ Agreement No. 16/2015, granted exemption to consumers with distributed micro or mini generation of photovoltaic solar energy falling within the four modalities currently provided for in ANEEL Normative Resolution No. 482/2012, namely, (i) generation alongside the load, (ii) remote self-consumption; (iii) enterprise with multiple consumer units; and (iv) shared generation, with installed power less than or equal to 5 MW.
As the aforementioned tax incentive was classified as intended for the maintenance or increase of commercial activities, in the exact terms of the original wording of item III of Clause Ten of ICMS Agreement No. 190/2017, the final deadline for enjoying the benefit would be – until then – in December/2022.
With the supervening of Complementary Law No. 186/2021 and the amendment of ICMS Agreement No. 190/2017 through the recent ICMS Agreement No. 68/2022, the State of Minas Gerais will take care to amend its Internal Regulations (RICMS) in order to extend, until 12/31/2032, the exemption granted to consumers with micro or mini distributed generation of photovoltaic solar energy.
Having made these considerations, the imminent extension, to 12/31/2032, of the period for enjoying the benefits and tax incentives linked to the Tax on Operations Relating to the Circulation of Goods – ICMS proves to be essential for the distributed generation activity and will definitely contribute to maintain the expansion of the corresponding generation modality in the country.
