The Government of the State of São Paulo has started notifying several gas stations that bought gasoline and diesel from distributors who evade taxes — a measure that may set an example for other states and help reduce a problem that has become a funding avenue for organized crime.
The notifications began to be sent out last week, when several gas stations reported receiving the document demanding payment of taxes on fuels purchased from distributors such as Refit, Fera, and Império.
The amount to be paid is R$ 1.22 per liter of gasoline. In other words, a gas station that bought 200,000 liters in a month would have to write a check of R$ 244,000 to the state treasury.
Gas stations can still appeal at the administrative level, and the actual payment may take a long time to happen.
“But the important thing is the message this sends, the shock it causes in the sector,” Emerson Kapaz, the president of the Legal Fuel Institute (ICL), told Brazil Journal. “With this notification, dealerships will think twice before buying from these tax-evading distributors, afraid of being charged later on.”
According to Inês Coimbra, the State Attorney General, this operation separates the wheat from the chaff.
“Many of the gas stations that were notified are part of the same economic group as these tax-evading refineries, and others are not. The station that is not will say: ‘Why should I get involved in this? Later on, I will be the one paying the price.’”
Since the approval of the so-called ‘single-phase’ law, the ICMS on petroleum derivatives started to be collected solely at refineries or importers — instead of taxing the product at different stages of the supply chain.
Furthermore, a fixed amount per liter is now charged, instead of a percentage based on the purchase value.
To collect from gas stations, the state treasury is relying on Complementary Law 192, approved by Congress in 2022, which provides for ‘solidarity’ — meaning if a producer or importer fails to pay the tax, the amount can be charged to those who bought from them.
“The São Paulo treasury knows that there are several distributors not paying the tax,” said the legal vice president of a major distributor closely following the situation. “What they did a few months ago was put these companies under special scrutiny, requiring the stations that buy from them to request proof that the tax was paid.”
But since these distributors continue to evade taxes, and the gas stations keep buying without asking for the receipt, “now the State is demanding these receipts and starting to notify everyone.”
According to this source, the situation has left many fuel retailers (gas station owners) in a frenzy, as they had purchased the fuel “thinking they were getting a great deal and now they have to pay the tax that the distributors didn’t pay.”
Interestingly, the enforcement measures do not include ethanol, as the fuel is not subject to single-phasing — this will change with the Tax Reform
The ideal scenario would be for the State to collect the tax directly from the distributors or refineries, but under the principle of solidarity, the treasury can charge from whoever is easier to collect from.
Since many of these distributors do not have assets, a headquarters, or are located in places where the State cannot enforce collection, the chain link easiest to access are the gas stations.
“Now we will see who is the hero and who is the villain,” said the CEO of a major distributor.
A law firm working for Refit — linked to Refinaria Manguinhos, which owes R$ 9.5 billion to the State of São Paulo and R$ 10 billion to Rio de Janeiro — has prepared a defense model against the fines and is sending the document to gas stations, according to industry sources.
Simply put, the argument is that gas stations should not pay this tax because it would be double taxation. (Naturally, the argument would only make sense if distributors and refineries were paying the taxes).
The action taken by the São Paulo government is an attempt to correct a historical — and growing — problem affecting the fuel sector.
ICL estimates that the Government loses about R$ 14 billion per year in tax evasion, and the sector loses another R$ 15 billion to operational fraud, such as fuel adulteration.
One of the solutions advocated by the sector is the creation of the figure of the habitual debtor, which is being proposed in at least two bills pending in Congress — PL 15, which deals only with federal taxes, and PL 184, which covers all taxes and is stalled in the Senate. Obviously, the lobby of tax evaders is getting some senators to sit on it…
Unlike the occasional tax debtor, who cannot pay for a specific period, the habitual debtor is the entrepreneur who uses non-payment of taxes as a competitive tool, incorporating it into their business model.
“By differentiating these two debtors, the tax authority would be able to take much more drastic measures against this habitual debtor, such as shutting down their operation,” said another industry source.
Currently, the tax authority cannot do this because the understanding of the STF is that tax collection cannot be enforced with this type of measure.
Source
Arwen Volkov, A graduate of the University of St. Gallen in Switzerland with a degree in International Finance, Arwen specializes in sustainable finance and green investments. She began her career at an investment bank in London, where she developed financing models for environmentally friendly projects. Known for her analytical and strategic thinking skills, Arwen is a sought-after financial consultant. In her spare time, she mentors fintech startups, contributing to their growth strategies. She is also a nature enthusiast and an amateur photographer.
