Telecom operators such as Claro and TIM (TIMS3) send bills due in August to customers in São Paulo where they continue to pay 25% ICMS on mobile (and pass that amount on to consumers), despite the fact that the state has already reduced the rate to 18 % about two months ago.
In practice, companies pay more tax than they should and charge this extra cost to the consumer (if they lower the price, the customer bill may be cheaper). a Infomoney I collected examples of the two operators in São Paulo because the state reduced the tax on the same day that Supplementary Law 194 of 2022 was sanctioned.
LC 194/22 began deeming goods and services on fuel, electricity, telecommunications, and public transportation essential, and as a result, 26 states and the Federal District were prohibited from charging a price above the minimum (which is 17% or 18%, depending on the unit of the union).
The law came into effect immediately after its publication, which in theory will benefit businesses and customers. but the Infomoney He also revealed, on Tuesday (16), that some operators are already paying less than ICMS due to the price cut, but they are not passing this difference to customers.
Claro is also involved in this situation – just like Vivo (VIVT3) and Copel / Ligga Telecom – but with invoices sent to customers in Minas Gerais and Santa Catarina. The problem was revealed on Thursday (18), by ICMS overpaid, involving accounts in São Paulo.
Either way, customers are in harm’s way, as in the case revealed on Tuesday, the ICMS discount isn’t up to who they should; As revealed today, consumers pay more taxes than necessary.
In pursuit of this, Claro and TIM have stated that they will pass the ICMS discount to customers, but they did not explain how and when. They also did not say whether they would return the additional tax paid. Claro also did not say whether it would return the difference in tax that is already paid lower in Minas and Santa Catarina.
TIM, in a note, said it had begun passing the ICMS downgrade “in a process that will take place in phases,” starting with new users. Changes will be made in the telephonic component of offers and represent a percentage of readjustment equal to or greater than the reduction in tax.
The operator reported that on the 7th of the month it reduced the price of its postpaid and control plans and that since Monday (14) prepaid customers began to earn “up to 1 GB more on internet packages, while maintaining commercial recharge values.” “Changes will be extended to customers who are already in the base throughout the process of implementing the transfers.”
Claro said it “remains committed to passing on the benefit of the ICMS reduction to its customers.” “However, completing the necessary systemic adjustments will require a short transition period.”
No transition period
But the Minister of Finance and Planning of the State of Sao Paulo told Infomoney That “there is no transition period for the adequacy of regulations”. “As stipulated in the SFP newsletter of 06/27/2022, based on Supplementary Law No. 194/2022 and on Clause 4 of Article 24 of the Federal Constitution, these operations shall be taxed at the rate of 18% as of 06/23/2022 “.
The secretariat also said that there is no provision for companies still paying the old rate – and charging this higher amount from customers – to be able, in the following months, to deduct the tax being paid more. But the file indicated that telecom companies could later request payment of the values.
“The law does not provide for any transition period and is effective immediately,” says tax attorney Mauricio Terciotti, of Terciotti, Andrade, Gomes e Donato Advogados. “So they [as teles] not applicable [a redução] Immediately, consumers will be able to file a lawsuit to claim this double amount.”
Regarding the “necessary systemic adaptations” mentioned by Claro, the Infomoney I searched for Conexis (the telecommunications consortium that was called SindiTelebrasil and changed its name). But the entity said it would not comment on any difficulties operators might face in adapting their systems to the ICMS limit.
According to the report, the National Telecommunications Agency (Anatel) stated that it “discovers the facts related to the matter and will then take the necessary measures in due course.” Anatel reiterates that the agency’s communication channels are open to receive user requests directly on this matter.
The Brazilian Institute for Consumer Protection (Idec) said that “telecommunications and Internet access services are essential to the exercise of citizenship.” “In an inflationary period like today and when it comes to an essential service, Idec understands that the ultimate benefits must be passed on to consumers.”
a Infomoney He also contacted the National Secretariat of Consumers (Senacon), an agency of the Ministry of Justice and Public Security, and Procon-SP, which is linked to the São Paulo government, asking if they were both aware of the problems and whether they had adopted it. intends to take any measures against the operators.
He also asked if telecoms could favor new customers, at the expense of existing customers, by first offering them an ICMS discount. It also asked about parts of the CDC (Consumer Protection Act) and/or other legislation that companies could violate by adopting such practices, but had received no response until the publication of this report.
What can be done?
The consumer has different ways of denouncing the non-compliance of the ICMS reduction in telecom services. The first step is to find the principal of the state in which you live.
The experts consulted recommend that the consumer have accounts in his hand, which will serve as evidence for opening an administrative investigation against companies. The next step, if the issue is not resolved administratively, is to go to court. Civil courts focus this type of procedure.
To file a complaint with Anatel, the contacts are:
“We reiterate that information obtained directly from interactions with telco users is essential to helping the regulator plan its future actions,” the agency said. “For more details on how the channels and procedures work and also indexes of Anatel service solutions, we suggest refer to the link: https://www.gov.br/anatel/pt-br/consumidor/quer-reclamar/reclamacao”.
Claro maintains its commitment to pass on the benefit of the ICMS reduction to its customers. However, completing the necessary systemic adjustments will require a short transition period. These adaptations become more complex as countries adhere to the new rates at different times.”
“TIM will pass on to consumers the reduction in the Tax on Circulation of Goods and Services (ICMS), in a process that will take place in phases, covering new and existing users at different times. Changes will be made in the telephony component of the offerings and represent an adjustment percentage equal to or greater than the tax reduction.”
Starting August 7, the value will actually be reduced for anyone who rents a Postpaid or Controlled plan. For example, TIM Controle Smart will cost R$46.99 (the current price is R$49.99). The value of the TIM Black 15GB will be adjusted from R$ 109.99 to R$ 99.99. In prepaid, changes begin August 14, with up to an additional 1 GB in internet packages, while maintaining commercial recharge values.
Changes will be extended to customers who are already in the base throughout the process of executing transfers, as well as determining the conditions of other offers. TIM’s goal is to maintain its commitment to transparent business management and always provide the best customer experience. The company recognizes that price is an important asset and ensures that its users receive the best offers on the market, with the relevant benefits of browsing the largest mobile network in Brazil.”
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