The Federal Supreme Court (STF) will decide, in a trial with general repercussion, whether marketplaces and companies that mediate payments can be held responsible for the collection of ICMS in sales made by third parties, in cases where the seller does not issue invoices or disregards legal obligations. According to the Rio de Janeiro Treasury Department, the measure can generate up to R$ 5 billion additional per year to the state coffers. Despite the positive potential to strengthen the collection for each state, the proposal is viewed with caution, as it can impose high costs on digital platforms, transferring to them additional risks that originally would be established to the state sellers, in addition to opening up to the scope of each state.
The lack of foundation in the current legislation to assign this responsibility demonstrates that the States, even under fair pretext, have been transferring their supervisory responsibility to taxpayers. This directly impacts the compliance costs of platforms, especially because many operate at the national or even global level. “The subject has been treated simplistically under the regulatory bias, with evident transfer of supervisory burden to marketplace platforms that, in many cases, are not even contributors to ICMS”, says Felipe Wagner de Lima Dias is a partner responsible for the tax area of Marcos Martins Advogados
According to the expert, it is necessary to pay attention to the three main possible impacts of this movement:
- Legal and compliance challenges ^ The STF needs to address whether state legislation is based on accountability marketplaces.If it advances in this line, a uniform national standard would be necessary to avoid legal uncertainty and disproportionate costs. Alternatively, minimum standards of compliance could be required, as already occurs in other tax inspection situations.
- Impacts on business models and competitiveness Although the decision should not redesign the entire economy of e-commerce, it can raise costs and fees charged by platforms, which need to invest in control mechanisms and tighten registration and use rules. This can reduce access to the digital environment for small and medium-sized sellers, especially in less structured operations.
- Cost of industry compliance and agility ^ If there is accountability, the reconciliation between collection and efficiency should come from automation and technological solutions. Platforms can invest in artificial intelligence systems and integration of tax data to monitor notes, validate records and reduce liability risks. Without this technological support, there is a risk of greater bureaucracy and loss of flexibility that characterizes e-commerce.
The STF decision could be a milestone for the regulation of e-commerce in Brazil. If, on the one hand, it can bring greater legal certainty and uniformity, on the other, it raises concerns about increased costs, access barriers for sellers and greater operational complexity for marketplaces.
“The role of the marketplace has always been to bring sellers and buyers closer in a digital environment. Although these models have evolved to offer services such as freight, payment methods and even tax tools, this does not make them co-responsible for third-party taxes, just as a mall does not respond to taxes from its merchants”, says Dias.
