Marketplaces: risk of paying ICMS bill lights up warning signal

Marketplaces: risk of paying ICMS bill lights up warning sign

STF decision involving a law from the state of Rio de Janeiro that makes the sector responsible for the seller's failure to issue an invoice will have national reach

Silvia Pimentel

No date has yet been set, the Federal Supreme Court (STF) will analyze the constitutionality of a law in Rio de Janeiro that obliges marketplace platforms and payment intermediary companies to collect ICMS (Tax on the Circulation of Goods and Services) in cases where the seller fails to issue an invoice.

As the issue was considered of general repercussion by the Court at the end of August, a possible validation of the Rio de Janeiro law will apply to other states that also hold marketplaces responsible in these situations, increasing the compliance costs of these companies, which, as a consequence, will be passed on to sellers, either through increased commissions or fees.

The decision that recognized the general repercussion cites some states that have legislation similar to that of Rio de Janeiro, such as Ceará, Bahia, Mato Grosso and Paraíba.

"If the requirement is validated, the marketplaces will have to monitor the issuance of the note. It will be a high cost, not only because they will be responsible for collecting the tax, but because of the need to maintain a structure for this inspection, says tax lawyer Pedro Bresciani, from Utumi Advogados.

The lawyer highlights the difficulty in controlling the issuance of tax documents by third parties in transactions carried out in the current format. This is because the invoice is issued after the purchase has been completed.

“Operationally, I don’t know how marketplaces will require the issuance of the tax document after the purchase, since the transaction has already taken place”, he asks.

Another effect of a possible decision unfavorable to the sector is that the validation of this model paves the way for other States to pass laws to provide for the liability of marketplaces and payment intermediaries.

Services

Salvador Cândido Brandão Junior, partner at the firm Galvão Villani, Navarro, Zangiácomo and Bardella, draws attention to the consequences of the decision in the field of ISS (Service Tax), administered by municipalities.

He says that the topic suggested for general repercussion in the STF deals only with the intermediary's responsibility in the event of failure to issue a mandatory invoice and/or non-compliance with additional tax obligations.

However, the law of the state of Rio de Janeiro is broader and provides for different degrees of liability, depending on the type of property.

“In the case of digital goods and merchandise, the electronic platform that makes the offer (marketplace), or delivers it through electronic data transfer, is responsible when operating the financial transaction, regardless of identifying whether or not the third-party supplier issued the invoice.”

The lawyer recalls that, currently, there are several municipalities assigning responsibility to the digital platform in relation to the ISS, withholding tax, every time they intermediate a service and operationalize the financial transaction.

With this measure, he points out, many municipalities have been holding platforms like Uber or Airbnb responsible, for example, for the ISS owed on the service offered by third parties, that is, property owners or app drivers.

Daniel Lannes, partner in the tax area at Maneira Advogados, explains that, for now, the STF's decision only recognized that the issue has constitutional scope without, however, delving into the merits.

“The general repercussion mechanism, as the STF currently sees it, is designed so that the court decides at once not only the specific case, but also cases involving similar laws”, he says.

In a statement, Amobitec (Brazilian Mobility and Technology Association) informed that member companies are closely following the discussion in the STF in the expectation that the court will certify the unconstitutionality of the state legislation approved in the state of Rio de Janeiro. “The law determines the allocation of responsibility incompatible with the intermediation activity provided by the platforms”, says the note.

The Case

The extraordinary appeal analyzed by the STF was filed by Francisco Bulhões, then state deputy of Rio de Janeiro and former secretary of Urban and Economic Development of the capital of Rio de Janeiro, against the TJ-RJ ruling in the context of direct unconstitutionality action.

Bulhoes questions State Law 8,795/2020, which regulates “passive liability in cases of operations with digital and non-digital goods and merchandise and provision of communication services carried out by a legal entity owning a website or electronic platform”.

According to the author of the appeal, Rio de Janeiro legislation violates provisions of the Federal Constitution and imposes tax liability beyond the parameters outlined by the National Tax Code (CTN) and Complementary Law 87/1996.

(Image: Freepik)