On April 28th the Rio de Janeiro State published Resolution No. 1,000/16, through which it suspended the issuance of tax deficiency notices (autos de infração) and assessment notices (notas de lançamento) to charge ICMS on import processes of transactions without ownership transfer (i.e.: imports under lease agreements, among others). Also, the ICMS deficiency notices and assessment notices already issued on import processes of such transactions were cancelled by said Resolution.
Resolution No. 1,000/16 was based on the Brazilian Supreme Court (Supremo Tribunal Federal – STF) understanding settled on Extraordinary Appeal No. 540.829-SP, which, under the broad impact regime (repercussão geral), determined that no ICMS is due on import of goods without ownership transfer, as in such cases there is no actual commercial transfer of goods (ICMS taxable event).
According to the Resolution, in case of import of goods without ownership transfer, the importer must request a Form for Clearance of Foreign Good without Proof of ICMS Payment (Guia para Liberação de Mercadoria Estrangeira sem Comprovação do Recolhimento do ICMS – GLME).
Moreover, Resolution 1,000/16 also provides that if and when due, the ICMS must be collected by the customs clearance of the imported goods, or by the termination of Special Customs Regimes, whenever applicable.
One should highlight that, as stated in section 5 of the Resolution, the suspension and cancellation of ICMS deficiency and/or assessment notices does not imply in an automatic restitution of ICMS already paid for the import of goods without transfer of ownership. For such, a judicial suit must be filed in order to request the reimbursement of ICMS unduly paid in the referred transactions during the last 5 years.
Felsberg Advogados´ Tax Team is at your disposal to assist in regards to the ICMS reimbursement herein commented. Please contact Anna Flávia Izelli Grego (email@example.com), Ivan Campos (firstname.lastname@example.org) or Thiago Medaglia (email@example.com), partners from the Tax Department.
This article is of a solely informative nature, and does not contain any opinion, recommendation or legal advice from Felsberg Advogados concerning the subject matter covered.