The tributary who studies mythology

Source: Gazeta do Povo Online (Curitiba - PR) - 25/05/2012

Defender of the neutral ICMS, without any exemption and with the same rates for the whole of Brazil, the lawyer Sacha Calmon is against the prohibition of the states to use their expenses to make fiscal policy. The Minas Gerais accent deceives and makes one think that the tax lawyer is not Salvadoran. A Flamengo and Bahia supporter, Calmon justifies his choice by explaining that in Minas, the state where he lives, “he doesn't have a team”. A worshiper of sertão food, the former federal judge was able to visit the Northeast when he was still a child and accompanied his father, who was an engineer and worked on the Transnordestina railway. In the interview with Gazeta do Povo, Calmon defended the privatization of Brazilian infrastructure, the reduction of consumption taxes and a more flexible labor regime.

What is your opinion about the bill for the unification of ICMS taxes?

When the tax reform took place, in amendment number 1 of the 1966 Constitution, shortly after the 1964 Revolution, the ICM was created to replace the IVC. States levied sales and consignment taxes. It was a cumulative tax, it gave no credit. So it was an extremely inflationary tax. And we imported from Europe the introduction of VAT, a value added tax. At that time, the competence to collect value added taxes, which is the case with the ICMS, was either from the federal government, when the state was organized as a federation, or it was from the national state, because there were no states, there was no problem. This is the case of France, Portugal, Italy. In Germany there was already a state. Result: the competent one was the union. Brazil contradicted and allowed the states to become competent. But then it almost castrated their competence. It defined everything in a Senate resolution. The states did not give up and started to give incentives that they should not give, because this tax is incompatible with extra-fiscal purposes. Hence the fiscal war was born. This shooting that, in my opinion, delays the development of Brazil.

After this explanation, I say the following: I am in favor of neutral ICMS, without any exemption, without any reduction in the calculation base and with the same rates for the whole of Brazil and charged in the state of destination, as it is in Europe. It is now wrong to prohibit states from pursuing fiscal policy with their spending. States have to make this policy of attracting investments with expenditure, clearly, to know how much they are spending to attract companies, to promote industrial development, job creation. Because when you give up revenue, you don't know anything, you don't even know if the incentive policy is being productive or not. Especially because as it is a tax that has repercussions in other states, the consequence is that fight, this legal confusion, dangerous demand for credit and a bad business environment, there is a lot of uncertainty, legal uncertainty.

Minister Guido Mantega said that resolution 72, passed in the Senate, is the first step towards Tax Reform. Do you agree?

He is referring exactly to the ICMS Tax Reform, which is not imposed by him, is imposed by the states. This question of ports, originally, was to set a zero rate. Because you gave advantage, in any port, to not pay anything of ICMS. Now, in the subsequent transaction, you will pay an interstate or internal rate that is due, without credit. So the person who imported did not pay, but the person who charged the importer, will pay in his place. That was the idea, canceling the incentive by zeroing, that I don't transfer credit.

Because what the ports were doing was this: you don't have to pay anything and then I put in the tax book that you paid 18%, but you didn't pay. The taxpayer in the other state believed in that 18% and abated the tax he had to pay in the other state. And the other state said: I will not accept, you did not pay anything, you are transferring the burden to my consumer, because you did not give me any exemption, just transferred the moment of payment to him. So Mantega's idea was to eliminate this illegal incentive, and in the subsequent operation, with a full rate, zero imports were recovered. Then the states said they wanted compensation and put the rate at 4%. I mean, then you pay 4% and also only transfer 4%.

How do you think Brazil can face international competitiveness today, especially China, without being protectionist? It's possible?

I think so. We have to do, in the medium term, some things, like improving the infrastructure, which means privatizing it all. The federal government's investment capacity is 3,7% of GDP, we need 24% investment. It is also necessary to reduce consumption taxes, they are the ones that make things made in Brazil more expensive. And we must have a more flexible labor regime, if what is happening in Europe is not going to happen. It has a lot of protection and a lot of unemployment. Credit has to fall, these interest rates in Brazil are absurd, they are loan sharks. And lastly, the technological revolution, innovation. So our agenda is long term. Now, I think protectionism is not a good thing, because you accommodate those who are tight.

You are the author of the book The History of Judeo-Christian Mythology. What led you, as a lawyer, to dedicate yourself to this matter?

Because, incredible as it may seem, Law was born from religions. Because in the past, to make people stay on the straight path, the norm was religious. God punishes, God sends to hell, it was the Criminal Law, religious. And in law, to reward is to go to heaven. So actually, religions, if you look at it, they are myths, mythological. The book is very big, there are 800 and so many pages. And I bring the collection of great authors who have already dealt with the birth of law. It is a legal, critical view of religions.

Do you have any religion?

No, I'm an agnostic.

How long did it take you to write?

Five years. Basically it was an obsession, because I was raised very "catholically". My parents inculcated me with a religion very full of guilt, of sin, a religion of fear, and I decided to shake off this irrationality. We are even afraid to write and be punished, because there is already a terrible God, a punishing God.

What do you like most, now that the obsession is over?

I like good literature, everything that is good, good wines, good music.

What is your favorite literature?

I like the cop a lot, I like Agatha Christie, I like Dan Brown, I think he's outstanding. From Umberto Eco. From the Nobel Prize in Portugal, Saramago.

[Stop talking and watch a Euro game playing on television in the hotel lobby]

Do you like football?

I like.

What team do you support?

IM flamenguista.

But aren't you a miner?

I am, but there is no team there. I'm Bahia and Flamengo.

But Bahia?

It's because I was born there.

Which city in Bahia?


So you are from Salvador?

Soteropolitano, the city of Salvador. Sotero in Greek is the savior ...

And why did you adopt Flamengo?

I adopted Flamengo because Dad was an engineer. So he was making a railway, the Transnordestina, and I followed as a boy. And in the Northeast, of ten Northeasterners, eight are flamenco. In Piauí everyone is Flamengo. Flamengo fills the stadium. Flamengo can play there in any city in the Northeast where the fans are all Flamengo. I do not know why. There are very few Vasco's, Fluminense.

So, did you know the northeast enough during childhood?

I knew why the road left Salvador and went towards Sergipe, Alagoas, Paraíba, Pernambuco, it left. And I was between five and ten years old because of this road.

Sefaz reinforces inspection of NF-e users

Source: A Gazeta (Cuiabá - MT) - 22/05/2012

Mato Grosso's Finance Department (Sefaz-MT) will reinforce the inspection of taxpayers of the Tax on Circulation of Goods and Provision of Services (ICMS) users of the Electronic Invoice (NF-e) for the use of cutting-edge technology. This is the Business Intelligence System Based on Electronic Invoices (BI NF-e), which will allow the state tax authorities to integrate the information available in the agency's databases, cross-check the data and produce analytical reports.

“The tool will also allow data manipulation by the various analysis teams, in order to impact the autonomy, agility, productivity and profitability of the tax administration's work, which may result in an increase in the voluntary collection of ICMS”, notes the coordinator from Sefaz-MT's Business System Computerization Unit, Luciney Martins de Almeida Moreira.

The BI NF-e will enable Sefaz-MT to monitor the movement of companies, map economic data from the state's macro-regions, carry out a strategic analysis of ICMS collection, cross-check various data by segment or company, among other possibilities. In other words, it will make it possible for the State to make fiscal control of the purchase and sale of goods more efficient. Currently, 46.310 ICMS taxpayers are NF-e users, who account for approximately 63% of the tax collection in the State.

Invoice ride 2.0

Source: Info Exame (São Paulo - SP) - 22/05/2012

São Paulo - The Brazilian tax asylum offers a vast space for the performance of tax evaders. Only with regard to the tax on the circulation of goods and services (ICMS), each state has its own legislation, with a total of 3.500 rules in constant change.

In recent years, this tangle has become even more complicated with the worsening fiscal war between states and municipalities to attract companies and increase their revenue. It is easy to understand the appetite for ICMS. The tax collection has increased 33% since 2009 and approached 300 billion reais last year.

The main weapon used in the war is the offer to reduce the tax. As a result, there are more than 40 different ICMS rates in the country, varying from 4% to 25%. And what could be good - paying less tax - has become a fertile ground for crime.

The most applied scam is the tour of the invoice. A few years ago, scammers worked on real logistical engineering to defraud: departing from a producing state, goods traveled to states with less tax. The tour served to heat up the bill, registering the product as if it had been produced in the state that charges less tax.

Then, the good returned to the starting point, usually São Paulo, to be consumed. With the creation of the electronic note, a click on the computer became sufficient to issue the document - there are 180 million per month in the country. And then the 2.0 tour was born: the invoice virtually goes to other states, but the product does not move.

To simulate that something was produced in a distant state, just send the note over there and then do the reverse. By magic, the product “changes” in origin. "The difference in ICMS induces the dishonest to simulate a fictitious destiny", says Clóvis Panzarini, former coordinator of the São Paulo Finance Department.

Although some states and some companies can make gains from fraud, the country's economy can only lose. “The fiscal war promotes distortion in investment decisions, raises costs and harms companies that comply with the law,” says economist Paulo Rabello de Castro.

To try to end the war, the federal government is discussing with states the unification of interstate rates - today they are 7% and 12%. But the negotiation should take time. In the meantime, the note tour thrives, as shown in the following three examples, in the ethanol, medicine and steel markets.


Since 2007, to prevent fraud, the government has determined that the country's 16 refineries should centralize the collection of taxes on gasoline and diesel. Ethanol, however, because it is produced in hundreds of plants, has been left out - and has become the preferred target of dishonest distributors.

Fraudsters create distributors in states such as Goiás, where the ICMS rate is lower than that of São Paulo, the main producing state. "The scheme is set up with a company that is legally constituted, but in the name of oranges," says Alísio Vaz, president of the fuel distributors union.

The company only serves to simulate the passage of ethanol and issue the electronic invoice, obtaining the benefit of the lower tax. But only the note travels to Goiás. The fuel goes directly from the producer to service stations that participate in the scheme and, thus, offer ethanol at a low price - taking customers away from competitors who work in the legal sector.

The fraud, however, does not end on the note tour. Over time, fraudsters evade all taxes. When they are fined, they leave the distributor and start again with the name of another orange. Seven companies are currently under investigation - the National Petroleum Agency does not disclose which ones.

Pharmaceutical products

medicines are one of the products most affected by the invoice tour. The existence of 82 pharmacies scattered across the country - 000% of them small - and the sector's tight margins make it easier for the picks to act, as gains in the tax can increase the profit of traders.

Drug fraud is old, but it has recently incorporated technology. Until three years ago, the cargo and the paper invoice were a hit: they traveled from states that are producers, such as São Paulo and Rio de Janeiro, where the ICMS is heavier, even, for example, the Federal District, that takes a smaller toll.

Then, the cargo returned to its origin to be sold. Now, with a click on the computer, the electronic note is issued as if the cargo had completed the same path. The new scheme is called a merry-go-round: the bill makes a loop to reach the same place and the load is stopped. "The difference of a few percentage points encourages the wholesale banknote tour," says Ronaldo de Carvalho, owner of the Drogaria São Paulo chain.


Far from decreasing, the fiscal war between the states has evolved with new formats. What has gained more space recently is the offer of specific tax benefits for imported products. In ports like Itajaí, in Santa Catarina, and Vitória, in Espírito Santo, this started to be done to attract cargo from abroad and destined for other states.

Thus, a product that will be sold in São Paulo, instead of landing in Santos, uses a terminal in a state that charges lower ICMS. Companies that clear their imported products at these ports pay a small portion of ICMS to the state and receive a tax credit as if they had fully paid the tax.

The difference is charged to the destination state and turns into profit. In the steel distribution market, this new scenario of the fiscal war is leading to another trade-off: the international invoice tour. Dishonest distributors started to simulate that loads of Brazilian products came from countries like China or Italy.

But, in reality, only the invoice was issued electronically as if the steel had originated abroad. With the operation, the deceivers are able to sell steel at a price up to 8% cheaper than the market average, equivalent to 224 reais per ton.

"Depending on the tax credit obtained by the distributor in the port, the advantage in relation to the price of my product reaches 12%", says a businessman in the sector who asked for anonymity. The solution to end this type of coup is under discussion in the Senate: to define a single ICMS rate for imported goods.

"The port war sponsored by some states requires an urgent solution to end fraud such as the international tour," says Marco Polo Lopes, president of Instituto Aço Brasil.

New rule in e-commerce can guarantee R $ 40 million to SC

Source: Diário Catarinense (Florianópolis - SC) - 21/05/2012

Proposal for the redistribution of the tax among the states still needs to pass the approval of the Senate plenary

The changes that should occur in the sharing of ICMS for products purchased over the internet or sold on television programs may generate R $ 40 million for Santa Catarina starting next year. Today, the entire tax is on the State where the distribution centers of the selling companies are located, which are concentrated in the Southeast. The proposal is that, as of 2013, resources are divided.

The Secretary of Finance of Santa Catarina, Nelson Serpa, says that by the new rules 40% of the ICMS on internet purchases will stay with the State of the distribution center and 60% in the place where the product buyer lives.

He also recalls that the amount collected by Santa Catarina must increase over the years because internet commerce is growing consistently (see box). Since 2007, it has tripled in volume and closed last year at R $ 18,7 billion, according to data from the consultancy e-bit. And of the 8,5 million new online consumers conquered last year, 61% belonged to class C. The forecast remains positive and between January and December this year, R $ 23,4 billion in products should be sold in the country.

But before the Santa Catarina government can count on the money, the project must be approved in the Federal Senate. The political environment is quite favorable, informs the advisory of the Ministry of Institutional Relations. The SC finance secretary says the proposal passed the Constitution and Justice Commission and now there will be a public hearing this month at the Economic Affairs Commission. He will be present and says that the climate is good because most states will benefit. Today, distribution centers are concentrated in São Paulo and there is less presence in Rio de Janeiro and Minas Gerais.

Another very important ally is the federal government itself. Serpa recalls that, in the tax reform, the team from the Ministry of Finance argues that the ICMS should remain with the states where the buyers are located.

According to Serpa, the state is among the main markets for products sold over the internet in Brazil. The shopping list follows the national list and consists of computer products, appliances and health and beauty items. Another favorable factor is internet penetration in Santa Catarina. A study carried out by Fundação Getúlio Vargas and Fundação Telefônica, released last week, shows that 41,66% of the computers in the cities of Santa Catarina are connected. The national average is 33%. Florianópolis also stands out: it is the Capital with the greatest digital inclusion, 62,1%.