The Government of Rio Grande do Sul altered the percentage of MVA (value-added margin) of cosmetics, perfumery, and toiletries and toiletries, through Decree n. 53.045 / 2016, published on May 31, 2016. MVA integrates the ICMS calculation basis and constitutes its calculation basis, in relation to products subject to tax substitution forward, regime that imposes responsibility for the advance payment of alluded tax - in relation to subsequent stages - to the taxpayer in the first chain of marketing, industrialization or import.

This amendment began to be applied on June 1 that year (one day after the publication of Decree), which represented a major impact on the tax burden of companies, considering that some products increased by more than 156% of MVA . Faced with this scenario, the Brazilian Association of the Personal Hygiene Industry, Perfumery and Cosmetics (Abihpec) joined the judicial measure requiring urgently tutelage, the suspension of the application of the percentages introduced in the RICMS / RS by Decree n. 53.045 / 2016. The request was analyzed in the first degree and is partially granted the tutelage to suspend the application of the decree until August 1, faced with the understanding that MVA implies increased taxation. Thus, its application must respect the principle of nonagesimal beforetension. Faced with such a decision, Abihpec brought an aggravation of an instrument, claiming that the decree in question infringed, in addition to the principle of nonagesimal beforetension, the principle of anteriority, which prevents the collection of tribute in the same financial year in which the majority law has been published or institution.

The Court of Justice, in turn, acceded the alleged, granting suspensive effect to the instrument of an instrument, applying understanding that the constitutional principles of antiority and unprecedentity Nonagesimal should be applied simultaneously. In this sense, considering that Decree n. 53,045 / 2016 was published on May 31, 2016, its effectiveness was suspended until January 1, 2017, for all industries associated with Abihpec.

This position of the Court of Justice is very important for taxpayers, considering that States are used to amend MVA as a rapid way to increase collection, causing immediate increase in taxation, which ends up In view that they are not granted a timely time to recompose the prices of their products, in line and in the proportion of the increase in MVA.

it deserves, however, to be clarified that this decision has effect exclusively for the personal, perfumery and cosmetics industries, associated with abihpec (tax substitutes), thus, merchants of such products (replaced) are not exempted MVA changes, in accordance with Decree n. 53.045 / 2016, as of June 1 of this year. This is because industries will no longer collect the tax by virtue of a judicial decision, and there is thus such a decision or guilt, with the burden of the ICMS, with the amendments brought by Decree No. 53,045 / 2016, during the decision-making.

Thus, there is a chance of the industry to apply the decision of the Court of Justice and the Difference of the ICMS not collected to be charged from merchants under the ground that the responsibility for the payment of the non-collected tribute during the suspension judicial decision of the tax substituted. Therefore, it is for merchants, in the condition of tax substituted, to enter the judicial measure seeking the suspension of the effects of Decree n. 53.045 / 2016, under penalty of having to bear the difference not collected by the industry, as ICMS-ST.