On 04/27/2020, the Federal Supreme Court (STF) issued a unanimous decision, not yet published, in ARE no. 665134/MG, establishing that the state responsible for collecting ICMS-Imports will be the one in which the legal recipient of the operation, who caused the circulation of the goods, is domiciled or established.

It was decided, therefore, that one should take into account, for the collection of ICMS-Imports, who acquired the goods from abroad – whether the importer or the customer, and not the place where they will be delivered. This decision pacified the understanding of the Supreme Court on Theme 520 of general repercussion.

Thus, in import by order operations, ICMS Import should be levied by the state where the importing legal entity, which bought the product from abroad, is located, based on article 155 of the Brazilian Federal Constitution.

It is worth clarifying that importation by order is the operation in which the importing legal entity acquires the product from abroad with its own resources and resells it to a client in Brazil (ordering legal entity), which had previously ordered the product. Thus, for example, in cases of imports made by order with trading companies located in the state of Espírito Santo, Espírito Santo will be responsible for collecting the ICMS tax levied on the release of the goods.

As for imports on behalf of third parties, in which the importer is hired to perform only the customs clearance of the good and the goods are purchased with the client’s financial resources, the state in which the client’s establishment is located is the competent one to collect the tax. Thus, for example, if a trading company located in the state of Espírito Santo is hired only to perform the customs clearance of the goods by a client located in São Paulo, São Paulo will be the competent state to collect the ICMS-Import.

The STF’s decision declared the partial unconstitutionality (without reduction of text) of article 11, item I, line “d” of Complementary Law 87/96, which states that the State where the physical entry of the product occurs would be responsible for collecting the tax. The interpretation that the place of the operation or service provision, for ICMS-Import collection purposes, will be “only and necessarily that of the physical entry of imported, taking into account the legality of fictitious circulation of goods emanating from a documentary or symbolic operation, provided there is effective legal business.”

Thus, the Supreme Court has established the understanding, already present in Brazilian doctrine and jurisprudence, that in a custom transaction, ICMS Import can only be demanded by the State of the importing company, which purchased the goods coming from another country, and not by the State of the ordering company where the goods will be delivered.

The judgment ends a discussion that has been going on for decades and has repercussions on possible infraction notices that were being issued by state tax authorities, especially in cases where the companies resold the cleared goods to other entities in the federation. In these cases, in addition to the collection of ICMS-Import, the right to the credit resulting from the operation was also rejected.

In view of the above, we are at the entire disposal of our clients for any clarifications that may be necessary, especially about the impacts of the decision on the respective import operations and, also, to eventually verify the alternatives to recover any taxes unduly collected in the last 05 (five) years.


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