SP tries to recover R $ 600 million in ICMS


By Marta Watanabe, Cláudia Schüffner and Janaina Vilella From São Paulo and Rio, Valor Econômico - 17/01/2005

Secretary Eduardo Guardia: Rio's measure opens space for tax evasion
The State of São Paulo tries to recover around R $ 600 million in Tax on Circulation of Goods and Services (ICMS) that would have stopped being collected by fuel distributors.

According to the Secretary of Finance of São Paulo, Eduardo Guardia, a resolution by the State of Rio de Janeiro has allowed distributors to pierce the so-called tax substitution, a system in which the ICMS is collected by the refinery. “Rio grants a kind of special regime that opens space for distributors to buy gasoline in Rio and operate in São Paulo, evading the tax.”

According to Guardia, the Secretariat of Justice even requested a civil investigation to investigate the matter. The lack of payment would be, according to him, concentrated in two distributors: Inca Combustíveis and Alcom Comércio de Óleos. The secretary recalls that other distributors use Rio's special regime. "But we only detected problems with these two companies."

Inca reported that it has not sold gasoline in São Paulo since August and that previous operations were immune. The company says that there are no infraction notices against the Inca due to the sale of fuels from Rio to São Paulo and that it has already provided all the information requested in the civil investigation. Sought, Alcom's lawyer did not return.

Secretary Eduardo Guardia recalls that the Rio resolution is not illegal. Issued in the government of Benedita da Silva (PT / RJ), Resolution No. 6.488 / 2002 created a special regime that gives distributors the responsibility to collect the ICMS. As a general rule, due to an agreement approved by the National Council for Farm Policy (Confaz), the tax is collected in advance by the refinery when selling gasoline to distributors. One reason for applying anticipation was to avoid tax evasion. Simple adherence to the regime, therefore, would not mean failure to pay ICMS. The problem happens, says the secretary, when the distributor is in the regime and sells the fuel in São Paulo without collecting the tax to Rio or the São Paulo government.

The Rio measure was, according to sources linked to the fuel distributors, the result of a discussion between the Rio de Janeiro and São Paulo governments on the taxation of anhydrous alcohol. The gasoline sold at the pump is a mixture that takes 25% anhydrous alcohol. When Rio's refineries anticipated the ICMS, they withheld the tax based on an estimated price at the pump. This included both 75% pure gasoline and 25% alcohol in the calculation.

As taxation was done at the refineries in Rio, the alcohol that left the São Paulo plants destined to mix gasoline was free of ICMS. The refinery collected the tax from Rio, which in turn passed the alcohol portion to São Paulo.

The problem started when, in 2002, São Paulo claimed that it was not receiving the transfer in full. A major supplier of alcohol, the State decided to start charging the tax on sales of the product by the plants, which created a double taxation for the distributors that bought from the two refineries in Rio: Reduc, from Petrobras and Manguinhos. They now have the ICMS on alcohol retained at the plants and refineries.

With the adherence to the special regime, distributors are free from double collection, but become responsible for the payment of ICMS. Seven distributors are beneficiaries of Rio's special regime. Among them, Ipiranga, Shell, Esso, Texaco and Ale Combustíveis.

By coincidence or not, Inca and Alcom were the first beneficiaries of the program, published in the Official Gazette on September 10, 2002. Three days later, on the 13th, Inca was the first distributor in the country to have the adhesion approved . According to data from the National Petroleum Agency (ANP), Inca is headquartered in Paulínia, in the interior of São Paulo, where Petrobras' largest refinery is also located. Alcom was the second to join, on October 29, 2002.

According to Sindicom, a union that gathers large distributors, Inca and Alcom do not have stations with their flag in Rio. Inca, says Sindicom, had never bought gasoline in Rio before the special regime. Alcom, which informed the ANP of its headquarters in Duque de Caxias, was buying small volumes that jumped six months after joining the regime. Sindicom calculates that the two companies have bought about 725 million liters of gasoline since 2002. The volume is sufficient to supply the State of Rio for more than four months.