Contrary to what has been reported by the press, the changes resulting from last April's enactment of Constitutional Amendment no. 87 do not affect the so-called e-commerce only.
This is so because, as provided for in said rule, all sales and services operations subject to the ICMS (state sales and services tax) intended for end consumers, regardless of whether they are ICMS taxpayers or not, will be affected by that rule.
The reason is that, contrary to the situation that will be in effect up to 12/31/2015, those interstate sales and services operations will thereafter be subject to the ICMS based on their interstate rates of 4%, 7% or 12%, as the case may be, even if the purchaser located in another federation unit is a regular ICMS taxpayer.
Although some may argue that the interstate ICMS rate has always been adopted in sales and services operations intended for end consumers enrolled as ICMS taxpayers, it is worth reminding that several federation units, among which the State of São Paulo, have already been charging their internal rate in those transactions.
Hence, as of 2016, the interstate sales and services operations will no longer be subject to the ICMS based on the internal rate provided for in the legislation of the federation unit of origin of the goods.
Furthermore, the interstate sales and services operations involving ICMS non-taxpayers, whether resulting from the so-called "e-commerce" or not, will result in the obligations of the shipper of the goods/provider of the services (i) to collect from the receiver of the goods or services the ICMS amount corresponding to the difference between their internal rates and the interstate rate, and (ii) to pay the respective amount according to the sharing percentage set forth in the Constitutional Amendment to the treasury of the federation units of origin and destination of the goods and/or services.
Although the SINIEF (National Tax and Economic Information System) Adjustment that will regulate the ancillary obligations that the shippers of the goods/providers of the services will be – additionally – required to meet, the point is that if they still are not enrolled as tax substitutes in the ICMS roster of taxpayers of other federation units, they are required to make said enrollment, otherwise the abovementioned payment (which is made through the payment form called "GNRE" - National Tax Payment Form), may be collected before the exit of the goods from the establishment/the start of the provision of the services, as set forth in the recently-executed ICMS Agreement no. 93/2015.
It is also important to highlight that, as it can be inferred from the content of Clause Three of said Agreement, the ICMS payable as rate difference will not be paid separately, but may be offset against credits of this tax entered in the tax books of the shippers of the goods/providers of the services in question.
Said Agreement also makes it clear that the accretions of the ICMS rates intended for the funds to fight poverty established by certain federation units, as, for instance, the State of Rio de Janeiro, must also be considered in the calculation of the rate difference.
In the three months lacking for the end of the year, the taxpayers involved in such operations are required to take cognizance of the internal rates in effect in the other federation units, including the payable accretions, attempt to obtain the tax enrollment in such States, review the prices currently charged, and, finally, wait for the issuance of the SINIEF Adjustment that will regulate the further ancillary obligations they will be required to meet in 2016.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.