THE INCIDENCE OF THE TAX ON THE CIRCULATION OF GOODS AND SERVICES (ICMS) ON TRANSFERS OF GOODS BETWEEN BRANCHES OF THE SAME COMPANY

Abstract

This study aims to analyze the impact of the Declaratory Action of Constitutionality (ADC) 49 on corporate groups in the Brazilian legal system and scientific articles. The first hypothesis raised in this research was not rejected, as taxpayers will not be entitled to ICMS credits from the operation prior to the transfer, that is, to credits generated at the beginning of the tax chain, considering that the transfer operation will not generate debt when the goods leave another state; therefore, the credit generated at the beginning of the tax chain will not be used by the taxpayer. Then, it was observed that the second hypothesis was not rejected, since the permanence of the mentioned decision widened the existing “fiscal war” between the states, since the states, from where the goods will be transferred, will not receive any value from the transfer “slice” of the tax generated, due to the non-incidence of ICMS at the exit of the goods. In summary, the present study ratifies the relevance of states presenting a new ICMS taxation system for this type of operation under the penalty of increasing the tax war and being impacted by the loss of tax collection.

Keywords: ADC 49, ICMS, Transfer of goods, “Tax War