Presented on February 6, Complementary Bill 16/25 (PLP 16/25) aims to modify Complementary Law 87/96 (LC 87/96) and Complementary Law 214/25 (LC 214/25). The changes proposed in the bill provide for the non-inclusion of the Tax on Goods and Services (IBS) and the Contribution on Goods and Services (CBS) in the calculation basis of the Tax on the Circulation of Goods and Provision of Services (ICMS), the Tax on Services (ISS) and the Tax on Industrialized Products (IPI).
The measure is based on the fact that the text of Constitutional Amendment 132/23 (EC 132/23), sanctioned by the President of the Republic, does not mention ICMS, ISS and IPI among the taxes that should not consider IBS and CBS in their calculation basis.
However, it is important to remember that the exclusion of IBS and CBS from the ICMS and ISS calculation bases was already present in the initial text of the Proposed Amendment to the Constitution 45/19 (PEC 45/19), which underwent changes only at the time of submission for presidential sanction.[1]
Although both the Chamber and the Senate initially voted to exclude the IBS and CBS from the ISS and ICMS calculation basis, the text was suppressed by the Chamber on December 15, 2023, after the PEC returned from the Senate.
In our analysis, this does not represent just an omission, but rather an intention of the legislator to include the IBS and CBS in the calculation basis of the taxes mentioned above, in addition to the possibility of having tax on tax – which may imply an increase in the tax burden.
This issue has been discussed for years and has generated a considerable number of cases in judicial litigation, such as the discussion about the inclusion of ICMS in the PIS and Cofins calculation basis and its related theses.
From our point of view, making explicit the non-inclusion of IBS and CBS in the ICMS, ISS and IPI calculation basis provides greater legal certainty to the taxpayer, since the lack of clarity and the possibility of having tax upon tax can even impact investor confidence and the stability of the market as a whole.
However, this proposed change in PLP 16/25 does not completely remove the discussion, because the aforementioned provision should be included in the Federal Constitution of 1988 (CF/88), in order to ensure the definition of clear and comprehensive rules and provide a solid and predictable environment for taxpayers.
As an example, there is article 155, § 2, XI, of the CF/88, which establishes that the IPI is not part of the ICMS calculation basis, as long as the transaction is related to a product intended for industrialization or commercialization.
For now, in the face of so many legal uncertainties, it will be necessary for taxpayers to prepare in advance to avoid setbacks during the transition period of the tax reform.
Our tax team remains available to discuss other relevant points and collaborate for a safe and productive transition.
[1] Text considered by the Chamber of Deputies and sent to the Federal Senate on 08/03/2023:
Article 156-A. Complementary law shall institute a tax on goods and services under the competence of the States, the Federal District and the Municipalities. (...) IX – it will not be part of its own calculation basis or that of the taxes provided for in arts. 153, VIII, 155, II, 156, III, and 195, V;
(...)
Article 195............................................................................................ V – on goods and services, under the terms of a complementary law. ................................................................................................. § 16. The contribution provided for in item V shall not be part of its own calculation basis or that of the taxes provided for in arts. 153, VIII, 155, II, 156, III, and 156-A.
Text considered by the Federal Senate and sent to the Chamber of Deputies on 08/03/2023:
Article 156-A. Complementary law shall institute a tax on goods and services under the competence of the States, the Federal District and the Municipalities. (...) IX – shall not be part of its own calculation basis or that of the taxes provided for in arts. 153, IV and VIII, 155, II, 156, III, and 195, I, "b", IV and V, and of the contribution to the Social Integration Program referred to in article 239;
(...)
Article 195............................................................................................ V – on goods and services, under the terms of a complementary law. ................................................................................................. § 17. The contribution provided for in item V of the caput shall not be part of its own calculation basis or that of the taxes provided for in arts. 153, VIII, 155, II, 156, III, 156-A and 195, I, "b", and IV, and the contribution to the Social Integration Program referred to in article 239.
Text considered by the Chamber of Deputies on 12/15/2023 and sent for presidential sanction:
Article 156-A. Complementary law shall institute a tax on goods and services of shared competence between States, Federal District and Municipalities. (...) IX - shall not be part of its own calculation basis or that of the taxes provided for in arts. 153, VIII, and 195, I, "b", IV and V, and of the contribution to the Social Integration Program referred to in article 239;
(...)
Article 195 ................................................................................... V - on goods and services, under the terms of a complementary law. ................................................................................................. § 17. The contribution provided for in item V of the caput shall not be part of its own calculation basis or that of the taxes provided for in arts. 153, VIII, 156-A and 195, I, "b", and IV, and of the contribution to the Social Integration Program referred to in article 239.
