Brazil's Supreme Federal Court (STF) will decide, in a case with general repercussions, whether marketplaces and companies that intermediate payments can be held responsible for collecting ICMS (a state sales tax) on sales made by third parties when the seller fails to issue an invoice or violates legal obligations. According to the Rio de Janeiro State Finance Secretariat, this measure could generate up to R$ 5 billion in additional revenue per year for the state. Despite the potential for increased tax collection in each state, the proposal is viewed with caution, as it could impose high costs on digital platforms, transferring risks that would originally fall to sellers, and opening the door for each state to establish its own rules, creating legal uncertainty and hindering the operation of companies nationwide.
The lack of legal basis for assigning this responsibility demonstrates that states, even under justifiable pretexts, have been transferring their oversight duties to taxpayers. This directly impacts the compliance costs of platforms, especially since many operate nationally or even globally. “The issue has been treated simplistically from a regulatory perspective, with a clear transfer of the burden of oversight to marketplace platforms that, in many cases, are not even ICMS taxpayers,” states Felipe Wagner de Lima Dias, partner responsible for the tax area at the law firm Marcos Martins Advogados.
According to the expert, attention must be paid to the three main potential impacts of this movement:
- Legal and compliance challenges – The Supreme Federal Court (STF) needs to address whether state legislation has a basis for holding marketplaces liable. If it moves in this direction, a uniform national standard would be necessary to avoid legal uncertainty and disproportionate costs. Alternatively, minimum compliance standards could be required, as already occurs in other tax audit situations.
- Impacts on business models and competitiveness – Although the decision is not expected to reshape the entire e-commerce economy, it may increase costs and fees charged by platforms, which will need to invest in control mechanisms and tighten registration and usage rules. This could reduce access to the digital environment for small and medium-sized sellers, especially those with less structured operations.
- Cost of compliance and sector agility – If liability arises, the balance between revenue collection and efficiency must come from automation and technological solutions. Platforms can invest in artificial intelligence systems and tax data integration to monitor invoices, validate registrations, and reduce the risk of liability. Without this technological support, there is a risk of increased bureaucracy and loss of the flexibility that characterizes e-commerce.
The Supreme Court's decision could be a landmark for the regulation of e-commerce in Brazil. While it may bring greater legal certainty and uniformity, it also raises concerns about increased costs, barriers to entry for sellers, and greater operational complexity for marketplaces.
“The role of the marketplace has always been to bring sellers and buyers closer together in a digital environment. Even though these models have evolved to offer services such as shipping, payment methods, and even tax tools, this does not make them jointly responsible for the taxes of third parties, just as a shopping mall is not responsible for the taxes of its tenants,” says Dias.
