COMPETE E-COMMERCE UPDATED

Through Decree 2,940-R of January 6, 2012, which introduced article 530-LRI, Espírito Santo instituted an incentive for interstate operations carried out in a non-face-to-face manner, through the internet or call center, destined to the final consumer, both legal person.

The Competitiveness Agreement signed between the State of Espírito Santo and AVENPES – Association of Non-Presence Companies of the ES, enabled companies in this sector to formalize their adhesions, starting their operations based on this incentive.

The companies that join the Compete Sale Non-Presential, when signing the Term of Adhesion undertake:

– Sign the Term of Adhesion to the Contract;

– Submit the Management Self-Assessment, according to the model provided by SEDES;

– Participate in the actions that are developed with a view to increasing the competitiveness of the sector;

– To update the Term of Adhesion to the Contract and the Self Assessment of the Management until the month of March of each year;

– Participate in the ES Competitiveness Program.

The Compete Sale Non-Presencial, currently is based on art. 23 of Law no. 10,568 / 2016.

This incentive provides:

Presumed credit in such a way that the effective tax burden results in:

I – 1.5% – was in force throughout the year 2016;

II – 1.25% – for the entire year 2017; and

III – 1.1% – from January 2018.

· Deferral of the ICMS tax on imports made by taxpayers who carry out the operations dealt with by this benefit, at the time of the departure of these goods.

· Non-payment of the part related to the State of Origin of the Difference of Aliquots – Difal.

Fences and compulsory:

· The company opting for this incentive should market its merchandise, exclusively through non-face-to-face sales, which can be through the internet or call center.

· It must request adhesion to the Competitiveness Contract of the sector next to the Venues.

· You can not use any other tax benefit.

· Transactions with goods subject to ICMS-ST, when already acquired with the withholding of this tax, can not be used for this incentive.

· The main social objective identified by the CNAE must be retail trade.

· In case of import transactions with the benefit of ICMS deferral, the company should prefer to use the infrastructure of the port or airport of the ES, with the landing and clearance in this territory.

The fence related to goods purchased with ST is automatically suspended if the taxpayer requests the accreditation of substitute taxpayer and obtains the approval of this litigation, obviously.

It is explicit in art. 23 that the Secretary of State for Finance may grant the status of substitute to the taxpayer located in this State.

In case of use of this incentive the company that sells by internet or call center will obtain a discount of approximately 90% in the payment of the “normal” ICMS (here the Difal Destino is not being considered).

And in case of operating with imported goods, they will no longer collect 17% of ICMS (in some states the internal rate is 18%) when the goods are nationalized, differing this tax for their exit, ie only when sales occur, which decreases the impact on financial flow.

To clarify a little more, when importing, they will not pay the ICMS of the entrance and collect only the ICMS calculated based on their exit operations, which will consequently result in a sale price with a lower ICMS tax burden built in.

Example:

Sales outside the ES for non-taxpayer (final consumer PF and / or PJ) – R $ 100,000.00 – ICMS seconded 12% ie R $ 12,000.00

Purchases from outside the ES – R $ 30,000.00 – ICMS outstanding 7% or R $ 2,100.00

Calculation if the company does not have this incentive (normal calculation) – Debit of R $ 12,000.00 – Credit of R $ 2.100,00 = ICMS to be collected of R $ 9,900.00

Determination if the company is a beneficiary of the e-commerce incentive – Debit of R $ 12,000.00 – Presumed Credit of R $ 10,750.00 = ICMS to be collected of R $ 1,250.00

Gain on the use of the tax incentive: R $ 8,650.00

* In this example the Difal Target is not being considered.

Considering all the details that must be observed when deciding on the implementation of a company and use of tax incentive, I recommend reading the Compete Sale Non-Presence legislation concomitant with the Competitiveness Contract of the sector, in addition to the elaboration of tax drawings and spreadsheets operations to be carried out.