On September 17, 2014, the plenary of the Federal Supreme Court, unanimously, declared the unconstitutionality of the ICMS Protocol 21/2011, of the National Council of Fazendar Policy, which required, in interstate operations by electronic or telematic means, Gathering part of the ICMS in favor of states where final consumers of purchased products are found.

This protocol was created on April 1, 2011 in Rio de Janeiro, under the National Council of Fazendar Policy.

Signed by 20 states, the ICMS Protocol 21 was pursuing to make a new distribution of ICMS in interstate operations in which the final consumer acquires merchandise or well in a non-face-to-face form through internet, telemarketing or showroom.

As ICMS, as a rule, in sales in which buyer and seller are located in different states, the seller must collect ICMS for their state, in a percentage from the price paid by the consumer who has purchased a particular product. / p>

This rule extends to the Internet sales, so that the tax is due by the company (virtual store) to the state where it is registered, not existing constitutional authorization so that the state where the final consumer covers the ICMS From the seller.

In the case of the protocol, a double collection occurs, since the ICMS is collected for both the state of the seller, as well as for the state that adhered to the protocol.

for the Ministers of the STF, the rule Viola proved in Article 155, paragraph 2, item, VII, point "b" of the Federal Constitution, where it is expected that, in the occurrence of operations and services that destine the final consumer goods, In another state, ICMS will collect the seller, that is, applying the internal rate when the recipient is not contributor to it.

Court were judged, together, the direct actions of unconstitutionality 4628 and 4713, the first filed by the National Confederation of Trade in Services and Tourism and the Second by the National Confederation of Industry, reported by Minister Luiz Fux, in addition to the Extraordinary resource 680089, with general repercussion, reported by Minister Gilmar Mendes.

The representative of the State of Pará was expressed in plenary in favor of the protocol, said the idea is to seek a way to share the wealth from ICMS between the units of the federation.

Already Minister Luiz Fux framed there is a material unconstitutionality, since the protocol makes a form of tax revenue, theme that can not be treated by this type of standard.

The Minister also said, in determining that part of the tax for the State of destination, the Protocol instituted a modality of tax substitution without a legal forecast, and emphasized that Article 155 of the Federal Constitution of course, since " It is necessary to wait for amendment or standard of amendment for this purpose. "

The Minister Gilmar Mendes pointed out that it is necessary to seek some formula of sharing capable of avoiding the concentration of resources in the units of origin, and ensuring a form of participation of the destination states, where consumers are. "But this need is not enough to recognize the validity of the standard in question, in view of the constitutional text".

The resource had a recognized general repercussion and the STF decision will impact at least 52 processes with the same theme that are overested.

At the end of the trial, ministers have modified the effects of the decision, by a majority of votes, determining that unconstitutionality has its validity from the date on which the precautionary measure was granted in the Addis reported by Minister Fux.