The launch of PIX, an electronic instant payment tool, created by the Central Bank of Brazil in September 2020, was undoubtedly the biggest transformation in payment tools since the popularization of credit cards in the mid-90s.
With the tool, many Brazilians, then users of conventional means of payment, such as cash, are now able to carry out transactions in a faster, more efficient, and safer way, without the inconvenience of having to carry cash in their purses or wallets. Commerce and the service sector were the main beneficiaries of the novelty, as they now have a new instrument to promote their operations and increase sales.
Even the payment of some Fees and Taxes became possible, increasing the volume of financial transactions in the country, and to a degree, helping to keep the economy functioning normally even during the most acute period of the Covid-19 pandemic.
Two years after the implementation of the system, PIX is today one of the main payment tools, moving, in the last quarter of 2021 alone, R$ 3.89 billion reais, surpassing transactions carried out by credit cards (3,73 billion) and debit cards (3.85 billion), according to data from the Central Bank of Brazil – BACEN.
However, with the new means of payment, questions arose about the gratuity of the services – since the current modalities of money transfer (TED and DOC) charged fees for carrying out the service – as well as doubts about possible taxation of electronic transactions carried out through the new modality.
Recently, there have been rumors about a possible charge of ICMS (Tax on the Circulation of Goods and Services) on electronic transactions carried out by the application. This is happening because on 4/11/2022, the Agreement 50/2022 of Confaz – National Council for Treasury Policy was published in the Official Gazette, which amended the provisions of Agreement ICMS 134/16 regarding the provision of information conveyed by financial and payment services institutions, linked or not to the Brazilian Payments System.
Item II of this Agreement amends the fourth and fifth paragraphs of the agreement signed in 2016, providing that: “§ 4 Banks of any kind, referring to operations not related to acquiring services, shall send the information referred to in this agreement to from the movement in January 2022, according to the schedule outlined in the following items (…) § 5 Transactions carried out via PIX must be sent retroactively, from the beginning of the services of this means of payment, except for the provisions of § 4 .”;
Thus, at first glance, it might seem that the instruction contained in the Agreement provided for the information of data relating to transactions carried out by PIX to supervise and subsidize the collection of taxes on operations carried out by the application. However, such speculation lacks any legal basis.
In this sense, it is important to clarify some elements regarding the legal nature and tax jurisdiction for the institution of ICMS, set out in Article 155 of the Federal Constitution, which establishes that “The States and the Federal District may create taxes on: II – operations relating to the movement of goods and the provision of interstate and intercity transport and communication services, even if the operations and services begin abroad; (Text provided by Constitutional Amendment No. 3 of 1993)”.
The constitutional provision was regulated by Complementary Law 87/1996, known as the Kandir Law, which established criteria for characterizing the status of the taxpayer, taxable event, and cases of non-incidence and exemption of the tax, subsidizing the elaboration of legislation by the states.
As such, the agreement signed during the CONFAZ meeting determines that financial and payment institutions – linked or not to the Brazilian Payments System (SBP) – should report, retroactively, all financial transactions carried out by the application from its launch, aiming to ensure the supervision of operations, especially commercial ones, carried out through the digital payment service.
This means that the information provided to the tax authorities will be used to, through the crossing of data with the information declared through Digital Tax Bookkeeping, determine possible non-payment of the tax by the commercial establishments that have the obligation of the tax assessment.
By crossing the information regarding the receipt of cash with data regarding the issuance of invoices, it is possible to verify the eventual evasion of ICMS. It is important to note that, in the same sense, today, financial institutions are required to provide data regarding bank transactions carried out through credit card, due to the possibility of tax fraud, through the non-issuance of invoices or electronic tax receipts to the consumer.
The measure is therefore intended to support the fight against tax evasion.
According to data from a study carried out in 2020 by the IBPT (Brazilian Institute of Planning and Taxation),[1] it is estimated that tax evasion in the country reached more than R$ 417 billion in 2019, of which only 65.49 % was converted into tax assessment notices – with a total value of R$ 273.1 billion – of which 94.7 billion refer only to ICMS – an amount greater than 1% of the national GDP in the same period – an astronomical loss of revenue for the states.
In this sense, it is important to point out that, if any taxation levied on operations via PIX is applied, this should be instituted upon approval of Ordinary Law – Article 150 of the Federal Constitution – which must be approved by the National Congress (principle of tax legality), which will have as its triggering event the mere electronic transfer of values, along the lines of the former CPMF.
Therefore, the agreement edited by CONFAZ is only a supervisory measure of operations involving the circulation of goods and services, not to be confused with a possible taxable event on transactions carried out through the PIX system; it is not feasible to establish any other forms of Taxation on these operations, with PIX remaining thus far a 100% free, modern and efficient payment alternative.
[1] https://ibpt.com.br/estudo-autos-de-infracao-e-sonegacao-fiscal/
Available at: https://br.lexlatin.com/opiniao/o-pix-e-o-icms-analise-do-convenio-502022-do-confaz
Autor: Pedro Batistoti Boller • email: pedro.boller@ernestoborges.com.br
