Rio changes logistics rules for marketplaces

Rio changes logistics rules for marketplaces

With simplification brought by Decree No. 49,304, the state government hopes to attract investments of around R$500 million

By Luiza Calegari — From São Paulo

Rio de Janeiro changed the rules for companies in the e-commerce sector (marketplaces) that have logistics operations in the State. The changes are in Decree No. 49,304, published in October. With the rule, the state government hopes to attract investments of around R$500 million.

According to tax lawyers, the regulation is positive, as it simplifies procedures, which should help attract resources to the State and increase revenue.

The decree was issued after Rio was excluded from the provisions of Sinief Adjustment No. 35, issued in 2022 by the National Council for Financial Policy (Confaz). The standard established rules that States should adopt for the storage of goods sold by online platforms, but prohibited the mixed storage of own and third-party products, which led to Rio de Janeiro's request for exclusion.

After that, explains lawyer Marcos Correia Piqueira Maia, partner at Maneira Advogados, the state government issued its own decree to regulate the topic. Compared to Sinief Adjustment No. 35, the Rio de Janeiro standard simplifies the list of obligations to which logistics operators and ICMS taxpayers who use the services of these operators are subject.

The update aims to cover the logistics operation market, which in 2023 had a turnover of R$192 billion, according to data from the Brazilian Association of Logistics Operators (Abol). These are companies “that carry out the storage and movement of goods on behalf of ICMS taxpayers”, that is, traders, who may operate in the same State or another.

The first change brought about by the Rio decree is the separation of the figures of exclusive logistics operators, who only work in the storage and distribution of products (and, therefore, are not subject to ICMS), from those that are non-exclusive, that is, who also sell their own products (and are subject to ICMS).

Exclusive logistics operators do not need state registration in the Taxpayer Registry of the State of Rio de Janeiro, which is highlighted by the Finance Department as an important point of simplification and attraction of new players to the state market.

Another important point, highlighted by tax experts, is the fact that non-exclusive logistics operators can store third-party goods alongside their own stock, without the obligation of physical segregation, which, according to Marcos Maia, “makes their activities much easier.”

The decree, points out Bianca Mareque, partner at Vieira Rezende Advogados, places the logistics operator as a type of inspector of the merchandise that passes through its establishment. She emphasizes that now these agents will need to have “very accurate control of this documentation, and be fully ready to receive inspection within their establishment”, as stipulated in the decree.

The Undersecretary of Tax Policy and Institutional Relations (Subpot) of the Finance Secretariat (Sefaz-RJ), Thompson Lemos, highlights that the update was necessary because, despite the “stupendous national initiative” of tax reform, the States will still need to deal with ICMS collection for a long time.

Subpot's special advisor Fábio Verbicário, in turn, highlights that the system was designed following the natural controls already used by the taxpayers themselves. “We realized that operators have a very well-executed inventory control system, and we maintained this structure, now only requiring the provision of information and presentation of invoices issued by ICMS taxpayers”, he states.

The initiative has the potential to heat up the market for logistics operators, says Olavo Leite, partner at BCVL Advogados. “It's an attempt to keep up with market dynamics, because today people buy all kinds of things online. The decree will provide greater agility and consequently heat up the e-commerce market”, he assesses.

Sefaz-RJ had already published another standard relating to the sector in February this year, Decree No. 48,964, which regulated compliance with the delivery of information to the state tax authorities by companies that act as e-commerce and payment intermediaries.

This was the first stage in the application of Law No. 8,795, of 2020, which allows the State to be able to hold marketplaces and payment intermediaries responsible for the ICMS owed by retailers who register on the platforms and do not issue invoices or collect taxes.

The rule was validated by the Special Body of the Court of Justice (TJRJ) in August 2022. Now, with the regulation, says the State, inspection will have the necessary legal support to combat tax evasion and unfair competition.

In addition to Rio de Janeiro, at least six other states also have specific rules on marketplaces, according to a survey by Loeser Hadad Advogados. São Paulo was the first to adopt specific legislation for the topic (CAT Ordinance nº 156, of 2010). There is also legislation on the subject in Minas Gerais (Law No. 23,894, of 2021), Paraíba (Law No. 11,615, of 2019), Bahia (Law No. 14,183, of 2019), Mato Grosso (Law No. 10,978, of 2019), and Rio Grande do Sul (Law No. 1.5576, of 2020).

https://valor.globo.com/legislacao/noticia/2024/11/25/rio-muda-regras-de-logistica-para-marketplaces.ghtml