[Free translation]
Much has been said about the amendment of TIPI, promoted by the publication of Decree No. 8.950 / 16, in view of the changes promoted by CAMEX Resolution 125/16, which issued the Harmonized System (SH-2017).
Several taxpayers are concerned about the correct tax classification of their products and consequently of their correct framing in the legislation related to the tax substitution ICMS provided for in the legislation of the 26 Federal Units and the Federal District.
It should be clarified initially that for taxpayers of ICMS, especially those who have goods subject to tax substitution, tax treatment should not change, in view of the provisions of clause fifteen-A of ICMS Agreement No. 81/93, which transcribes the follow:
"ICMS AGREEMENT Nº 81/93 - DOU of 09/15/1993
It establishes general rules to be applied to tax substitution regimes, established by Conventions or Protocols signed between the States and the Federal District.
......
Clause 10 - The reclassification, grouping and unfolding of codes of the Mercosur Common Nomenclature - NCM do not imply inclusion or exclusion of the goods and goods classified in said codes in the regime of tax substitution.
Sole paragraph - Until the amendment of the agreement or protocol to treat the modification of NCM is made, the identification of products by the original NCM of the agreement or protocol remains. "
After the first concern about the tax classification of the merchandise, the taxpayer is faced with another doubt: the issue of NF-e. In this sense, the Technical Note 2016/003, which brings the New NCM Table with effect from 01/01/2017, was made available on the NF-e portal, based on CAMEX Resolution 125/16, which Harmonized System (SH-2017).
This Technical Note aims to regulate the changes in the NCM table used by the Electronic Invoice (NF-e).
The deadlines for implementing the NT 2016/003 are:
- Type-approval environment: 01/02/2017;
- Production Environment: 02/13/2017;
- Tolerance period for use by the companies of the previous NCM table: until 03/31/2017.
Considering that the effective date 01/01/2017, informed in CAMEX Resolution 125/16, was close, making it difficult to implement the new NCM table by the authorizing entities and, above all, for the taxpayers, it was defined that the authorizing officers should make available the new NCM table, with the new codes, for approval until 01/02/2017 and for production until 02/13/2017 and that due to the greater complexity that can occur to execute the changes in the environment of the companies, the authorization accept until 31/03/2017 the extinct NCM codes.
In view of the above, we conclude that the taxpayer must pay attention to two situations. The first is the command of the fifth clause of ICMS Agreement No. 81/93, that is, correct classification of its product according to the Harmonized System (SH-2017), but continue to adopt the same tax treatment as it used before , until the updating of the agreements, protocols and state and district legislations, and the second one is to carry out research using the new and old NCMs as well as to adapt their systems so that they can identify the two cases for the application of the tax substitution and any tax benefits.
Source: Editorial Cenofisco
