On October 06, 2015, Law No. 7,071/2015 was published in the Rio de Janeiro State Official Gazette amending Law No. 2,657/1996, which establishes the rules relating to ICMS in the State of Rio de Janeiro.

The Law regulates the modifications introduced by Constitutional Amendment No. 87/2015 in regard of ICMS due in interstate purchases made by end consumers that are not ICMS taxpayers.

In this sense, it includes items IV and V in sole paragraph of article 2 of Law No. 2,657/1996, including the following cases in which ICMS is levied:

  1. transactions involving shipment of goods from a taxpayer established in another State to an end consumer who is not an ICMS taxpayer established in the State of Rio de Janeiro; and
  2. supply of services by a taxpayer established in another State to an end consumer who is not an ICMS taxpayer established in the State of Rio de Janeiro.

Moreover, by means of the amendment to article 3, the following ICMS tax events were included:

  1. transactions involving shipment of goods from a taxpayer located in another State to an end consumer who is not an ICMS taxpayer established in the State of Rio de Janeiro; and
  2. supply of services from a taxpayer located in another State to an end consumer who is not an ICMS taxpayer established in the State of Rio de Janeiro.

In relation to the ICMS calculation basis, the new Law provides that in case of transactions with goods, the ICMS due will be equal to the difference between the internal tax rate and the interstate tax rate, in each case applicable to the price of the transaction in question. In case of supply of services, the ICMS due will be equal to the difference between the internal tax rate and the interstate tax rate, in each case applicable to the price of the services.

The law has expressly included as ICMS taxpayers shippers of goods or suppliers located in other States, in case of transactions and services to end consumers who are not ICMS taxpayers established in the State of Rio de Janeiro.

The amendment to article 15 of Law No. 2,657/1996, provides that the following persons are ICMS taxpayers, irrespective of the frequency in which they engage in any type of the following transactions:

  • the importer or other individual or – public or private – legal entity that imports goods or assets from other countries, irrespective of the purpose of such assets or goods;
  • the recipient of a service performed overseas or whose performance started overseas;
  • the purchaser or other individual or – public or private – legal entity that purchases seized or abandoned goods through bids ;
  • the purchaser of lubricants and liquid fuel and gas fuel derived from oil and electricity from other States, where they are not to be used for trading or manufacturing purposes;
  • the shipper of goods or provider of services, located in another State, in the transactions with goods and services for end consumers who are not ICMS taxpayers located in the State of Rio de Janeiro.

Finally, the Law reproduced the transitional rule, establishing the gradual apportionment of ICMS between the States of origin and destination.

Please note that the rules established by the State of Rio de Janeiro have not solved some of the essential doubts in relation to this constitutional amendment: the use of ICMS accumulated credits, and whether State enrollment is required in case of interstate transactions with end consumers who are not ICMS taxpayers located in the State of Rio de Janeiro.

Finally, these new rules come into force on January 1st , 2016.