The EC 87/2015 (Emenda Constitucional 87/2015 or just constitutional amendment 87/2015) changes the way how ICMS is due in the goods and services trade between a company that is ICMS Tax Payer and an end-consumer (not tax contributor) located in a different state (region) than the region where the goods or services comes from.
Note that the end-consumer can be an individual (person) or a company that buys the product for consumption (not for resale or manufacturing).
This amendment presents the procedures to be adopted by taxpayers of ICMS in the tax sharing among states of origin and destination of the goods.
What is changing?
Before the EC 87/2015, in those trades, the ICMS was fully due to the origin state (where the goods or services were supplied from). After the EC 87/2015, the ICMS due in those processes would be share:
- The origin state will have the rights on the ICMS correspondent to the interstate tax rate.
- The destination state will have the rights to the ICMS tax that corresponds to the difference between his internal tax rate and the interstate rate.
Who must collect the tax rate difference (interstate rate x standard rate difference) in those situations?
- If the ship to is ICMS Tax Contributor, then he needs to collect the taxes
- If the ship to is not ICMS Tax Contributor, then the Ship from needs to collect the taxes
- January 1st, 2016
Impacts of the EC 87/15
In order to establish standards to the application of the EC 87/2015, the States decided to discuss a federal regulation (CONFAZ), which originated the ICMS agreement 93/15
Some of the items covered in the ICMS Agreement 93/15 were:
- The tax collection due by rate difference should be done via GNRE – Guia Nacional de Recolhimento de Tributos Estaduais – It’s like an existing standard form to pay taxes. Over the Tax treasury code 10008-8 – ICMS Recolhimento Especiais
- It was planned the possibility of States to grant taxpayer identification located in separate federal unit, enabling the payment of a monthly basis tax until the fifteenth day of the month the goods leave or the start of the service provision, following the same methodology adopted in transactions subject to the tax substitution regime
- Opens the possibility of supervision, jointly or separately, by the federal units involved in operations or services, even if the taxpayer is not established in the State responsible for opening the inspection
- The rules established by this agreement are applicable including to companies in the “Simples Nacional” regime.
- In regards to the usage of the ICMS credits, the tax contributor can deduce from their ICMS debit, pertinent to the tax difference rate, the amount correspondent to the tax due to the state government entity.
Before we go to the SAP solution, it is important to understand how the law is applicable to your company and your business.
Each State has your own methods to the application of the EC 87/2015, since a Complement Law (Lei Complementar or just LC) wasn’t issued to this EC, each UF (federated unit/state) has full legislative jurisdiction. Some of the notes in this post may not apply to a specific State/UF (federated unit).
What are the changes in the NFe Layout?
The NT2015/003 presents the NFe Layout changes to adapt the XML in accordance to the EC 87/2015.
At this date, the latest version of this NT is 1.50 and you can download it from here: NT2015/005 V1.50
ICMS Share Group Information:
Transaction subject to ICMS information-sharing group
- Interstate Operation (idDest = 2)
- Operation End Consumer (indFinal = 1)
- Operation with No Taxpayer (indIEDest = 9)
- No operation services (there is no “ISSQN” tag)
- Exception 1: This group should not be required if the Sharing Group ICMS (ICMSPart field) is filled
- Exception 2: The validation rule does not apply in production, to Invoice dated the previous issue 01/01/2016
- Exception 3: The validation rule does not apply to Products Return (finNFe = 4) that references Invoice with access key earlier to 2016
- Exception 4: The validation rule above does not apply in the NF-e “ENTRADA” (tpNF = 0)
ICMS Tax payment
The tax collection due by rate difference should be done via GNRE – Guia Nacional de Recolhimento de Tributos Estaduais – It’s like an existing standard form to pay taxes. Over the Tax treasury code 10008-8 – ICMS Recolhimento Especiais
Tax payment responsibility
- Service Provider
- Goods provider
Tax Payment Types
- By operation
- Taxpayers without State Inscription
- Must issue and pay the GNRE before issuing the goods or when starting the service
- Inform in the GNRE the Nota Fiscal number
- The GNRE must follow with the DANFE during the goods transport
- Each NFe will correspond to one GNRE
- By calculation
- Taxpayers with State inscription
- Must inform the State Inscription number in the NFes issued
- Submit monthly the documents with the tax collected records (GI ST National) until the 10th day of the subsequent month of the tax calculation, even that there were no business started with no taxpayers
- Must Issue and pay the GNRE until the 15th day of the subsequent month of the tax calculation
Changes on GIA-ST National
As per SINIEF Adjustment 04/93 (http://www1.fazenda.gov.br/confaz/confaz/ajustes/1993/AJ_004_93.htm):
II. Amount of ICMS due to the destination UF (Federated Unit/State): inform the amount of ICMS due to the destination UF due to the operations performed to the end consumers that are non-taxpayers;
III. Return or cancellations: Inform the amount that corresponds to the ICMS over returns or cancellations amounts related to services where the operation were informed in the field ICMS Amount due to the Destination UF in the current tax collection period or previous period.
IV. Prepayments: to inform, incorporated, the ICMS mounts due to the destination UF over the operations to end-consumer non-taxpayers, collected in advance, document by document, via GNRE, as a result of the inapplicable of the deadline for payment;
V. Total of ICMS due to the destination UF: to inform the balance of ICMS due to destination UF (field ICMS Amount due to UF of destination less fields Returns and Cancellations Prepayments).
Portaria CAT-92 23-12-98 – Annex V (https://www.legisweb.com.br/legislacao/?id=166801)
Article 1 – The establishment located in another federated unit is required to make payment or retention of ICMS in favor this State shall declare the polling information relating to this tax through National Information Guide and ICMS Calculation Tax Substitution – aka GIA-ST…
§ 1 – The National Guide to Information and Statement of ICMS Replacement Tax – GIA-ST (…) shall be submitted until ten (10) of the month subsequent to the determination of the tax…
First GIA-ST to be reported containing the EC87/15 is 10/02/2016
New changes in the layout:
SP created the FECOEP which is effective in the end of Feb/2016.
The SP State law 16.006, from November 24th 2015, implemented the Fundo Estadual de Combate e Erradicação da Pobreza – FECOEP (State Fund for Combat and Eradication of Poverty), effective 90 days after the law was posted.
SPED EFD Fiscal – New Registers
COTEPE Act /ICMS 44, October 19th, 2015
Some of the layout changes:
I – Changed the “Description” column of the table 18.104.22.168 – Abertura do arquivo digital e Bloco 0, of register 0015 to “Dados do Contribuinte Substituto ou Responsável pelo ICMS Destino“.
II – Added the C101 record in the table 22.214.171.124 – Block C:
III – Added the D101 record in the table 126.96.36.199 – Block D:
IV – Added the records E300, E310, E311, E312, E313 and E316 in Table 188.8.131.52 – Block E:
V – Added item 2 – ICMS Difal / FCP, in item 2 of Regras de Formação do Código de Ajuste da Apuração do ICMS, of item 5.1.1 Tabela de Códigos de Ajuste da Apuração do ICMS of item 5.1 – Ajustes dos Saldos da Apuração do ICMS
VI – Added the following codes in the generic table of item Obs, item 5.1.1 Tabela de Códigos de Ajuste da Apuração do ICMS of item 5.1 – Ajustes dos Saldos da Apuração do ICMS:
- XX209999 – Other debts to calculate adjustment ICMS Difal / FCP for UF XX;
- XX219999 – Reversal credits for calculating adjustment ICMS Difal / FCP for UF XX;
- XX229999 – Other receivables to determine adjustment ICMS Difal / FCP for UF XX;
- XX239999 – Reversal of debts to calculate adjustment ICMS Difal / FCP for UF XX;
- XX249999 – Deductions of tax calculated in determining ICMS Difal / FCP for UF XX;
- XX259999 – Special Debit ICMS Difal / FCP for UF XX;
VII – Changed the 0015 record name to “DADOS DO CONTRIBUINTE SUBSTITUTO OU RESPONSÁVEL PELO ICMS DESTINO”.
VIII – Changed the description of the field 02 – UF_ST record 0015 to “Sigla da unidade da federação do contribuinte substituído ou unidade de federação do consumidor final não contribuinte – ICMS Destino EC 87/15”
IX – Changed the description of the field 03 – IE_SR record 0015 to “Inscrição Estadual do contribuinte substituto na unidade da federação do contribuinte substituído ou unidade de federação do consumidor final não contribuinte – ICMS Destino EC 87/15.”
X – Included the following records in APPENDIX B – LAYOUT OF BOOKKEEPING TAX DIGITAL C101 REGISTER
INFORMAÇÃO COMPLEMENTAR DOS DOCUMENTOS FISCAIS QUANDO DAS OPERAÇÕES INTERESTADUAIS DESTINADAS A CONSUMIDOR FINAL NÃO CONTRIBUINTE EC 87/15.
Register C101 and D101
1 – The Sum of fields 02, 03 and 04 should be moved to register E300 and subsequent by UF
2 – This record is a child register to C100/D100 and the occurrence is 1:1
Register E300 and subsequent
On my next post, we will discuss the SAP Technical solution to attend the EC 87/2015.
There are many documents published on SCN to this topic… you may have seen it, you may have not…
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