Tocantins News – The 1st Civil Chamber of the Court of Justice rejected an appeal from a cattle rancher because it understood that the State Public Treasury (Sefaz) has the right to charge ICMS on live cattle transfer operations between two rural properties of the same owner located in the State of Tocantins and in another State of the Federation.
The case analyzed by the judges is that of a cattle rancher and landowner in the states of Tocantins and Bahia who wishes to relocate cattle between two farms he owns, one located in the southeast of Tocantins and the other in the municipality of Barreiras, in the state of Bahia.
He filed a writ of mandamus – an action that seeks to guarantee a clear and certain right – against the payment of ICMS charged by the Superintendence of Tax Administration of Tocantins.
The first degree judge dismissed the action by denying the farmer’s request, as he understood that the transfer was a simulation for commercial activity, which would characterize the triggering event for the collection of ICMS.
The sentence motivated the civil appeal judged by the judges on April 17, to reform the sentence and determine that the State of Tocantins does not charge the farmer with ICMS on the transfer of cattle.
In the judgment of the appeal, judge João Rigo’s dissenting vote prevailed to reject the farmer’s request and maintain the first degree sentence.
According to the collegial decision – ruling – the Superior Courts have a consolidated understanding that the movement of merchandise between establishments belonging to the same owner does not constitute an event generating ICMS when there is no transfer of ownership of the goods.
However, according to the winning vote, there was modulation of superior decisions in order to recognize the effects of charging ICMS on the movement of merchandise between establishments of the same ownership, from the 2024 financial year, which would give the States a deadline to regulate the transfer of ICMS credits between establishments with the same owner, except for legal claims that were pending judgment on the date of publication of the trial minutes in the Supreme Court, on April 29, 2021.
On these grounds, the First Chamber rejected the appeal. According to the decision, the farmer’s action is dated April 28, 2023, that is, after the publication of the judgment (collegiate decision) of the Federal Supreme Court (STF) and does not fall within the reservation of that judgment.
“The legal situation of the applicant [o agropecuarista autor do recurso] is equivalent to that of taxpayers who did not question the exactions judicially or extrajudicially, without the right claimed initially”states the judge in the dissenting opinion.
With this understanding, the judges fully maintained the sentence authorizing the collection of ICMS from this farmer. The collegiate also applied the modulation established by the STF.
