Since July 1st, when it was published in the extra edition of the Official Gazette of the State of Rio de Janeiro, it is in force the Decree 48,145/22, which sets the maximum ICMS rate in the State for internal transactions and services with fuels, electricity, communication and public transportation.
The Decree arises from the alignment of the State of Rio de Janeiro with the provisions set forth by the Complementary Law 194/22, of June 23th, 2022. The Complementary Law determines that fuels, natural gas, electricity, communications and public transportation are considered as essential and indispensable goods and services.
According to the provisions of Decree 48.145/22, the internal rate in the State of Rio de Janeiro for transactions and services with fuels, electricity, communication and public transportation will be a maximum of 18%. The lower rates established by the Law 2,657/96 (ICMS Law of the State of Rio de Janeiro) will be maintained.
According to Complementary Law 194/22, goods and services related to fuels, natural gas, electricity, communications and public transportation cannot be treated as superfluous, therefore:
- It is not allowed to impose ICMS rate higher than the one applicable in internal transactions in general;;
- It is allowed reduce the ICMS rates in order to benefit consumers in general; and
- It is not allowed the increase the ICMS rate to fuels, electricity and natural gas when the ICMS rate applicable at the time of publication of the Complementary Law was lower than the standard one imposed in internal transactions in general.
Regarding the fuels, the rate defined above will be used as a limit to define specific rates (ad rem) referred in Complementary Law 192/22, of March 11, 2022. It is worth noting that, unlike the provisions of Complementary Law 194/2022, Decree 48.145/2022 does not include the natural gas in the list of goods subject to such tax regime.
The provisions of Complementary Law 194/2022, introduced in the legislation of the State of Rio de Janeiro by Decree No. 48,145/2022, may also lead to discussions on the applicability of the payment of the Fund to Combat Poverty and Social Inequalities (FECP) in transactions and services with such goods and services, in view they do not qualify as superfluous.
