Invoice Law, Citizenship and Competition


By Hamilton Dias de Souza, lawyer, and Roberto Abdenur, ETCO Executive President

Hamilton Dias de Souza (left) and Roberto Abdenur

The referred law, which has been called the “Nota Fiscal Law”, determines the inclusion, in the tax or equivalent documents issued when selling products and services to final consumers, of information regarding the approximate value corresponding to the totality of federal taxes , state and municipal, whose incidence influences the formation of the respective prices (ICMS, ISS, IPI, IOF, PIS, COFINS and CIDE-fuels).

Often, the most attentive consumer is faced with products and services whose prices are decisively influenced by the taxes levied on them. Studies released by specialized entities show, for example, that, on average, the tax burden on cigarettes is around 54%; alcoholic beverages, around 50%; and gasoline, around 32%. That is, there are cases in which the tax costs even more than the merchandise itself.

The advantages of making the tax cost previously hidden in prices visible are many. One is greater control over the weight of the tax burden that falls on each type of product or service, which makes it possible to adopt corrective measures. Another is that the population becomes more aware of how much it contributes to the apportionment of public expenses and, in this way, it is better able to demand from the federal, state and municipal governments public investments compatible with the volume of taxes they collect.

The problem is that the tax cost is not always effectively borne by the seller of the goods or service provider offered in the market. For the most varied reasons, ranging from piracy to simple non-payment, many economic agents fail to fulfill their tax obligations. As a result, resources that could be invested in priority sectors are lost and compensation measures are created that end up increasing the tax burden of those who usually pay their bills on time.

Failure to comply with tax obligations also allows the amounts of taxes that should be collected by the government, under the terms of the legislation in force, to be disregarded when pricing goods and services, providing an artificial competitive advantage for taxpayers who they adopt this practice as if it were a “business model”. Such an advantage can reach dramatic levels in sectors with a high tax burden and reduced profit margins, notably when taxpayers who pay their taxes regularly are unable to reduce the price of their goods and services to the level practiced by defaulting taxpayers without giving up profitability. your business.

Traditional inspection mechanisms have not been shown to be effective in combating these corporate structures that have the main competitive element in the continuous and systematic tax evasion. It is necessary, therefore, to create different tax control and collection systems that make it possible to combat the problem efficiently, not only to preserve the treasury, but also free competition.

The creation of effective taxation systems depends, however, on the edition of a complementary law that establishes general rules applicable to federal, state and municipal taxes, as required by art. 146-A of the Federal Constitution (“Complementary law may establish special taxation criteria, with the objective of preventing competition imbalances, without prejudice to the Union's competence, by law, to establish norms with the same objective”).

Note that such a device, introduced in the Federal Constitution through Constitutional Amendment no. 42, of December 19, 2003, admits that, in the absence of a complementary law, the Union may issue ordinary laws containing special taxation criteria to prevent competitive imbalances caused by its taxes. The same prerogative does not apply, however, to States and municipalities, which will only be able to produce the rules applicable to their respective taxes after the enactment of the aforementioned complementary law.

Recently, Senator Delcídio do Amaral presented PLS-C 161/2013, in order to regulate the subject matter of art. 146-A of the Federal Constitution. The complementary bill, which is awaiting consideration by the Senate, deals with the matter very properly. In addition to defining special systems for paying taxes and providing relevant information to prevent competitive imbalances, it establishes limits and conditions for their use, in order to prevent indiscriminate use by tax authorities, for purely tax purposes. The bill also makes clear the possibility of repression, by competition defense bodies, of the abuse of economic power resulting from the failure to comply with tax obligations.

Thus, it is very convenient for the National Congress to briefly examine the PLS-C 161/2013, the approval of which will be fundamental to allow, in addition to the Union, States and municipalities to create differentiated tax systems designed to ensure that costs taxes revealed by the Nota Fiscal Law effectively revert to public coffers and, thus, provide for the dismantling of business structures harmful to the market and society.

It is, in fact, of great interest for States and municipalities to provide them with reliable tax instruments, effective and endowed with a solid constitutional and legal foundation, which puts them safe from legal questions and delaying maneuvers by unscrupulous companies, and thus allows them strengthen its capacity for inspection and collection.