EN 
PT_BR 
The Federal Senate approved, on October 6, PLP 05/2021 (Complementary Bill No. 05/2021), which aims to extend, until December 2032, tax benefits allocated to ICMS (Tax on Relative Operations to the Circulation of Goods), granted by the states and the Federal District for companies in the commerce segment. The matter will be forwarded for presidential sanction.
Understand the case
Aiming to resolve the fiscal war and the corresponding mitigation of its effects, the Federal Government issued Complementary Law No. 160/2017 authorizing the refund 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 Confaz (National Council for Financial Policy).
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 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.” (emphasis added)
As can be seen from the aforementioned items, for the commerce segment, although extremely relevant for national supply, it has been established that the final deadline for fruition will be in December/2022, while, for the industry segment, it will be in December/ 2032.
That said, PLP nº 05/2021 recently approved by the Federal Senate aims to amend Complementary Law nº 160/2017 to allow the extension, for up to 15 years, of tax benefits linked to ICMS intended for:
- the maintenance or increase of commercial activities – as long as the beneficiary is the actual sender of the merchandise,
- to interstate services with agricultural products and plant extractives in natura and
- the maintenance or increase of port and airport activities linked to international trade, including operations subsequent to imports, carried out by the importing taxpayer.
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, edited 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, 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 REN 482 (ANEEL Normative Resolution nº 482/2012), namely:
- generation next to the load;
- remote self-consumption;
- enterprise of multiple consumer units; It is
- shared generation, with installed power less than or equal to 5 MW.
As the tax incentive was classified as intended for the maintenance or increase of commercial activities, in the exact terms of item III of Clause Ten of ICMS Agreement No. 190/2017, the final deadline for enjoying the benefit will be in December 2022.
It should be noted, however, that this classification proves to be mistaken, given that in distributed generation operations there are no acts of commercialization or trade.
Thus, the tax incentive fits into the hypothesis contained in item I of Clause Ten of ICMS Agreement No. 190/2017, since, when considering that distributed generation implies:
- acquisition of equipment that allows own generation, or;
- leasing a third-party generation asset, it is concluded that this is, in fact, a promotion of the industry, which, given such a tax benefit, will produce and sell more equipment for this purpose.
Having made these considerations, it is imperative that PLP nº 05/2021 be sanctioned by the president. Because, despite the mistaken classification of the fiscal support granted to micro and mini generators in Minas Gerais as intended for the maintenance or increase of commercial activities, the change to be promoted in Complementary Law No. 160/2017 and ICMS Agreement No. 190/2017 will extend the deadline final for fruition, relating to the commerce segment, for December 2032.
