Author: Márcio Alexandre Ioti Henrique

Source: Monitor Mercantil - RJ - OPINION - 29/09/2009

Specifically with regard to the Electronic Invoice - NF-e, it must be said that it is a digital file, which will replace the Invoice Model 1 and 1-A, and must be filled out by the company and sent to the State Treasury, through specific programs for that purpose.

However, it is important to make some clarifications about the procedure to be adopted by the contributing company, so that it is not surprised by requirements of which it should have known.

Before the circulation of the merchandise exists, therefore before the occurrence of the ICMS generating event, the selling company must issue the NF-e, through the program it has acquired and already send that note to the State Treasury.

In this first contact, the State Treasury will analyze some formal points in relation to the issued NF-e, verifying, then, a previous validation regarding the document. The points that are analyzed in this step are: if the digital signature is valid; if the layout of the digital file is correct; if the numbering is correct; whether the issuer is authorized.

The first point concerns the digital signature. To issue an NF-e, the contributing company needs to have a digital certification from an authorized body, which allows a digital signature to be entered on the document to be issued. Without this digital signature, the NF-e is invalid and is not accepted by the State Treasury.

The layout of the NF-e must also be in accordance with the dictates of the State Treasury, following the standards of the Nota Fiscal Modelo 1 and Modelo 1-A. If this layout is not followed, the document issued will also not be accepted by the tax agency.

Another formality previously verified is related to the numbering of the NF-e. As well as the printed invoices, the NF-e must have an official numbering, in order to verify its legitimacy.

Finally, the State Treasury checks the registration status of the taxpayer issuing the NF-e. If the company has any problem with its registration, the issued NF-e will not be admitted.

It is important to note that in this previous analysis, the State Treasury will not verify any point regarding the operation itself, such as the corresponding CFOP, the applicable ICMS rate, etc.

In this way, the taxpayer remains responsible for the circulation of the goods, which will be subject to the approval of their acts by the tax authorities in accordance with current legislation.

After analyzing the formal aspects mentioned, the State Treasury authorizes, rejects or denies the use of the NF-e. The rejection occurs when the NF-e is not perfect from a formal point of view, while the denial occurs when the company has registration problems, but the NF-e itself is perfect.

With the authorization of use, the State Finance Department relays the NF-e to the Federal Revenue Service and this, if applicable, sends the digital file to the State Finance Department of the destination of the goods. It is clear, therefore, that up to this point there has not yet been the circulation of the goods.

After all these previous administrative procedures have been carried out, the goods can move. To this end, the seller must have already sent the electronic file of the NF-e to the buyer, in the way he best understands, and for the goods to be transported, the Auxiliary Document of the Electronic Invoice - Danfe must be printed.

Danfe's sole function is to monitor the transit of goods. However, the printed document has no legal value. Upon receiving the goods, the buyer must access the website of the State Finance Department to verify the validity of the NF-e, and if it is not valid, he may refuse to receive the goods.

Once the validity of the NF-e is verified, the Danfe stub must be signed, showing the delivery and receipt of the goods. Regarding the mandatory issuance of the NF-e, the state tax authority determined its implementation for companies in eight phases.

The last of the first four phases ended in September 2009, with the next four phases taking place in April, July, October and December 2010. Thus, until the end of next year, all companies that are in the situation of issuing NF -and they should have already implemented the system for that.

The first four phases that ended in September 2009, created the obligation to issue NF-e for companies according to the industry. It is a de facto criterion that takes into account only the goods produced by the companies.

The last phases, which will be implemented in 2010, will take into account the company's CNAE. In relation to these points, some considerations are necessary:

- If, by CNAE, a company had to start issuing NF-e only in December 2010, for example, but was in one of the branches of activity foreseen for the first four phases, this company should already register and start to issue the Note Electronic Tax right away.

- If only part of the company's production, even if a minority, is required to issue NF-e, all operations of this company must be documented through the digital file, the printed invoices Models 1 and 1-A will no longer be accepted.

- As of 2010, even if only one branch of a legal entity is required to issue an NF-e because of the CNAE, all other branches and the head office must start issuing the electronic document, even though the CNAE of the others does not. included in the requirement.

In short, the NF-e will actually bring some innovations to the taxpayers who should be aware of their peculiarities, so that they are not fined for not knowing the procedures that will be required by the State Finance Department.

There are several other important points on the theme, which should be verified by companies with the help of specialized professionals, in order to fit in with the changes that are being gradually implemented by the state tax authorities.

The topic is really quite stormy and requires a thorough analysis for the complete framework of the company.

Marcio Alexandre Ioti Henrique

Specialist in Tax Law, he is a professor at Nexo Cursos Jurídicos.