It is no longer news that the tax reform is about to be approved, after PEC 45/2019 (Proposed Amendment to the Constitution nº 45/2019) was recently approved in the Senate.
The PEC substantially changes the current form of taxation of goods and services, eliminating several “indirect” taxes (ICMS, IPI, ISS and PIS/Cofins), which have different triggering facts, calculation bases and rates, and the creation of three new taxes, the IBS (Tax on Goods and Services), the CBS (Contribution on Goods and Services) and the IS (Selective Tax).
We also know that there will be a transition period, in which all these taxes will persist at the same time. In other words, over a period of time we will have to understand and practice the taxation of eight taxes on goods and services, and not just the current five.
It is possible to say that all companies will be impacted, and will have to reevaluate their operations and strategies from a tax perspective. Thus, it will be no different in distributed generation sector, whose viability of several projects has a strong appeal in tax matters.
The intention of this article is not to predict how the tax reform will impact the MMGD (distributed micro and mini generation), as the final text of the PEC will still be submitted for final approval by the Chamber of Deputies, and may undergo adjustments, and at the moment we do not know clearly what the rates of these new taxes will be, as they will depend on Complementary Laws for their regulation and effectiveness.
From the preliminary analyzes of the tax reform PEC, some questions for reflection are suggested. See below what they are.
The exemption currently provided for by ICMS Agreement No. 16/2015 will not apply to IBS. During the transition phase, there will be an exemption from ICMS charged on the portion of energy compensated by a consumer participating in the SCEE (Electric Energy Compensation System), but IBS may be charged on this same portion.
After all, one of the key points of the tax reform is not the granting of different types of tax benefits, but rather the right to full credit of those taxed paid.
In the same sense, the PIS/Cofins exemption provided for in Law No. 13.169/2015 for SCEE does not apply to CBS, directly impacting the viability of investments for those who do not qualify for this tax, such as individual consumers. , by installing their own distributed micro or mini generation system.
Amendment No. 828 to the PEC meant that the Complementary Law that will define the operations benefiting from a 60% reduction in new taxes, CBS and IBS, must include electrical energy generated from clean and renewable sources.
The PEC does not differentiate between the different tariff components, TE, TUSD and Sectoral Charges.
While there are different rules for the taxation of ICMS and PIS/Cofins on these components, in principle the CBS and IBS must apply to all of these components, especially because the idea is that goods and services no longer have the difference that currently exists on the its different generating facts.
Income from the rental of goods should not continue to be exempt from taxation of goods and services as currently, being taxed by CBS and IBS.
As a large part of the installed MMGD systems come from solar sources, it is worth mentioning that ICMS Agreement No. 101/97 will also not accommodate CBS and IBS, treating them as exempt, as a specific rule that grants exemption only for ICMS.
Nobody said it would be easy, but the challenge is great for companies operating in infrastructure sectors, whose return analysis is long-term.
The opinions and information expressed are the sole responsibility of the author and do not necessarily represent the official position of the author. Canal Solar.
