In this article, Roberto Abdenur reinforces the urgency of regulating Article 146-A of the Constitution and draws attention to fundamental points so that the device does not become another simple collection instrument.

Roberto Abdenur, executive president of ETCO

Among the many factors that cause unfair competition between companies in Brazil, is the use of tax evasions to reduce the cost of products and, thus, obtain competitive advantages in the market. On December 19, 2003, the country took a major step towards eliminating this evil, with the publication of article 146-A, resulting from Constitutional Amendment 42/2003. Even today, the complementary law that is essential to regulate the adoption of tax measures necessary to consolidate a safe, healthy and ethical business environment is awaited.

For the time being, only the Federal Government has the competence to institute differentiated taxation systems in order to prevent competitive imbalances caused by the actions of companies that resort to reducing their tax costs to gain spurious competitive advantages. Since December 2003, states, the Federal District and municipalities have been waiting for the complementary law mentioned in article 146-A of the Federal Constitution to be issued so that they can create similar mechanisms applicable to the taxes within their competence.

The provision provides that the differentiated taxation systems adopted by the Union coexist with new special criteria, to be defined not only by it but also by States, the Federal District and municipalities when it is necessary to ensure that the tax burden is uniform for agents competing in the market. .

The text of the article is simple. It says: “Art. 146-A. 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. ”

The establishment of special criteria, by means of the complementary law referred to in article 146-A, is essential, therefore, to avoid or resolve competitive imbalances. In practice, certain taxpayers may be taxed differently from others, with the aim of leveling the tax burden (tax function), which would otherwise be unequal, thereby preventing any possible competitive imbalance (extra-fiscal function).

Due to the importance of the theme, ETCO has promoted debates over the years, which culminated in the realization, in 2010, of the seminar “Competition Tax Imbalance and the Brazilian Constitution”. Based on the conclusions of the seminar, the Draft Supplementary Law was designed to regulate Article 146-A of the Constitution.

It is essential that the complementary law is correctly formulated, under penalty of ineffectiveness of its provisions, or worse, of becoming just another collection instrument.

The proposed complementary law may resolve situations such as the anticipated collection of the taxable event. In other words, States will be able to charge ICMS in advance, in order to ensure competitive balance in markets that are more susceptible to tax evasion. Another situation that can be resolved is single-phase taxation. According to the tax substitution mechanism, taxes spread over a production chain (multi-phase) are collected at once, as if it were just a tax (single-phase). States already apply this mechanism, but there is no regulation and, therefore, each one does it differently.

In relation to the conflict of competences, the complementary law is vital. The Union already has the competence to regulate markets, but not States and municipalities, whose tax rules are only intended to collect. The complementary law will regulate the matter throughout the country, forcing states and municipalities to act to prevent competition imbalances. As for the minimum values ​​list, the jurisprudence refers to the illegality of adopting minimum values ​​as the basis for calculating taxes on goods and services. The complementary law will allow taxes to be based on market values, to combat fraud that is harmful to competition.

The importance of the complementary law does not stop there. There is also the question of specific rates. It has been increasingly common to create tax regimes in which the rate and calculation basis are merged, in order to charge a fixed amount per unit of merchandise. The complementary law will pacify the issue in relation to federal taxes and allow the use of specific rates by the States.

The complementary law will reaffirm the Union's competence to require the installation of weight, volume or flow meters. In order to make the differentiated tax regimes effective, it is necessary to impose the installation of equipment that allows the control of the quantity of goods traded by the establishment. Such requirements have been questioned, especially in terms of costs (SL 178 / DF).

Finally, two themes should have well-established rules based on the complementary law. Special tax calculation and inspection regimes may be instituted in specific cases and not only based on jurisprudence, which makes it impossible to subject taxpayers to individual different taxation and inspection regimes designed to avoid evasion due to violation of free competition and freedom of initiative. The complementary law will also make it clear that, in the case of sectors subject to a high tax burden, the suspension or revocation of a special registration is justified as a way of discouraging procedures aimed at gaining market through non-payment of taxes.

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