AGU states that state departments insist on not adopting a single tax rate for diesel and refuse moving average
The government of President Jair Bolsonaro asked the STF (Supreme Federal Court), on Friday night (May 20, 2022), that the Court take a decision on the alleged “omission” of the States in relation to the ICMS (Tax on Circulation of Goods and Services) on diesel.
In a petition (here is the intact – 2MB) sent to the rapporteur minister of the action, André Mendonça, the AGU (Advocacy General of the Union) states that the entities of the Federation adopted “recalcitrant posture” at the last meeting, in which they did not agree to reach a solution for the tax.
The government filed the direct action of unconstitutionality on May 13. In it, he questions the possibility of each State charging a different amount of ICMS on diesel.
In March, the state finance secretaries unanimously defined that the ICMS on diesel S-10 would be R$ 1.0060 as of July 1st. The value refers to the highest rate in force in the country, practiced in Acre. The application of the tax, however, would come with a “discount”, which, in practice, would maintain the current tax burden of each State. The measure was taken with the justification that there would be no impact on the collection.
As a result, each State continued with a different amount, and the objective of Complementary Law 192/2022, approved on March 10, which unified the rate and also established a new form of collection, the so-called ad rem, was not achieved. , fixed and per unit of measure.
On Thursday (May 19), Confaz (National Council for Finance Policy), linked to the Ministry of Economy, convened an emergency meeting with the States to try to reach a solution. The Council proposed the adoption of the transition model of application of a moving average, in the tax calculation basis, from the average price of fuel in the last 60 months. This would lower final prices at the pump. States did not accept the proposal, which would reduce revenue.
In the petition, the Bolsonaro government asks the STF:
- suspension of the agreement that fixed a single rate, but gave “discounts” on the tax;
- setting a maximum period of 30 days for the States, through Confaz, to set a single rate not only for diesel, but for all fuels;
- establishment of an interpretation on the uniformity of ICMS rates on fuels, in accordance with the Constitution and Constitutional Amendment 33/2001;
- convening a public hearing on the subject.
Fuel prices have been one of the main drivers of inflation in the country. On Friday (May 20), the ANP (National Agency for Petroleum, Natural Gas and Biofuels) released a new record for the price of diesel at gas stations: an average of R$ 7.07 per liter.
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