On October 7, 2024, ICMS Agreement 109/2024 was published in the Official Gazette, established between the States and the Federal District within the scope of CONFAZ, introducing new rules for interstate transfers of goods and merchandise between establishments under the same ownership. These rules align with the amendments made by Supplementary Law No. 204/2023 to the Kandir Law (Supplementary Law No. 87/1996). This provision revokes the former ICMS Agreement 178/2023.
The new ICMS Agreement 109/2024, effective as of November 1, 2024, eliminates the obligation to transfer ICMS credits in transfer operations, as was mandated by the now-revoked ICMS Agreement 178/2023. Additionally, it clarifies the non-incidence of the tax in such operations.
For taxpayers who choose to transfer credits, two calculation methods are presented to determine the value to be utilized by the receiving establishment:
- Credit transfer in an operation without ICMS incidence: In this scenario, outlined in clause four of the Agreement, the value of the credit to be transferred will be determined by applying the interstate rate on the average value of the incoming stock of the goods at the time of transfer; or the cost of the produced goods; or, in the case of non-manufactured goods, the sum of their production costs.
- Credit transfer in a taxed operation: As an alternative to the previous option, this scenario, outlined in clause six of the Agreement, allows the taxpayer to treat the transfer as an operation subject to ICMS payment. In this case, the credit will be determined by applying the interstate rate on the most recent entry value of the goods; or the cost of the produced goods; or, in the case of non-manufactured goods, the sum of their production costs.
For the latter method, the taxpayer must formalize their choice with a specific entry in the “Record of Use of Documents and Occurrence Terms” Book, applicable to all of their establishments. This option is annual and irrevocable for the entire calendar year and must be registered by the last day of December each year, to take effect from January of the following year. This rule applies starting from the Agreement’s effective date of November 1, 2024.
As outlined, ICMS Agreement 109/2024 presents different calculation bases for credit transfers, resulting in varying ICMS amounts available for utilization by the recipient establishments. Therefore, it is essential for the taxpayer to assess which option best suits their operations, as well as to comply with the obligations each method requires, such as ensuring the correct issuance of transfer tax documents or formalizing the choice for the taxed option.
The Tax Law Department of Marins Bertoldi Advogados is fully available to clarify any doubts regarding the new system introduced by ICMS Agreement 109/2024 for interstate transfers of goods and merchandise between establishments under the same ownership.
By Vinícius Encinas Paz
