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The State Attorney’s Office of São Paulo (“PGE”) and the Secretariat of Finance and Planning (“SFP”) published, on May 8th, the Joint Resolution 01/2019, which regulates the procedures, to be adopted by the taxpayer, for the recognition of ICMS tax credits derived from transactions with tax benefits without CONFAZ’s approval. 

The Resolution’s purpose is to regulate Article 1 of Supplementary Law No. 160/17 (“LC 160/17”) and Clause Eight of the ICMS Agreement No. 190/17, which deal with the remission of ICMS tax credits in the context of the Tax War.

According to the Resolution, taxpayers may file applications requesting the recognition of ICMS tax credits subject to tax assessments pending of judgment or already closed with unfavorable decision in the administrative level.
Said request must be filled out in accordance with the Resolution’s “Exhibit R”, which will be (i) presented directly on the records of the administrative proceeding in progress or submitted to (ii) the Directorate of Collection and Debt Recovery, regarding closed cases that are awaiting enrollment in executable tax debt; or (iii) the accountable unit of PGE, if it is already enrolled.
The request, in turn, will be analyzed by the Regional Tax Offices, the State´s Tax Court, Assistance Directorate, or by the PGE, depending on the case’s status.
According to the Resolution, the approval of the request is subject to compliance with the requirements provided for by both LC 160/17 and ICMS Agreement No. 190/17, including publication of the tax benefit in the Official Gazette of the State that granted it, as well as its registration and deposit.

In addition, in the request, the taxpayers have to expressly waive and withdraw themselves from any legal administrative or judicial defense or appeal concerning the ICMS tax credits. As stated in the Resolution, the waiver, however, will only take effect with the recognition, by the state tax authorities, of the required ICMS tax credits. If the request is denied, the judgment of the administrative or judicial proceeding will continue, as well as the procedure for enrollment in the tax debt.

While state tax authorities do not issue a final decision regarding the recognition of the requested ICMS tax credits, the course of the correspondent administrative and judicial proceedings will be suspended.

​Through its Official State Gazette, São Paulo, on March 9th, 2019, published Decree n. 64,130/2019, enacting the automotive regime IncentivAuto. Its goal is to increase investment in the automotive sector by providing the beneficiary companies with a financing incentive granted by the State Government, enabling the implementation of investment projects and the expansion of working capital after the completion of such projects.

The financing benefit will use resources from the State of São Paulo’s Taxpayers Support Fund (“FUNAC”) and its terms will be regulated by a Resolution of the Secretary of Finance and Planning, which may include:

1. Discounts over the balance due, for the advanced payment of specific tax obligations; and

2. Incremental discounts, limited to 25% of the outstanding balance, based on the amount invested in the project.
   

Furthermore, the Decree states that, to benefit from the regime, companies must: 

1. Manufacture motor vehicles classified under Chapter 87
   of the Mercosul’s Common Nomenclature (“NCM”) and be established in
   the State of São Paulo;

2. File a request with the Economic Development Secretariat, addressed to the Economic Development Policy Evaluation Commission of the State of São Paulo, containing at least an investment project for the expansion of an industrial plant, the implementation of a new plant, or the development of a new product, indicating amount and term of investment; and

3. The projects must attend cumulatively the following:
   

• Investment higher than R$ 1,000,000,000.00;

• Reach of a minimum goal of 400 new jobs; and

• All the investments must be used in the State of São Paulo.

Additionally, the Evaluation Committee of the Economic Development Policy of the State of São Paulo will be responsible for reviewing and approving the projects summited, analyzing their feasibility and opportunity, taking into account the technical areas.

Compliance with the project and other requirements will be monitored by a report disclosing the compliance with the schedule (within 60 days of the end of each semester) and demonstrating the compliance with the requirements and conditions established (within 180 days of project’s completion).

The Decree also specifies that the Finance and Planning Secretariat may issue supplementary rules and sustains the creation of new regime according to the Supplementary Law 160/2017 (Article 3, paragraph 8) and CONFAZ ICMS Agreement 190/2017 (clause 13), which allow states to grant tax exemptions, incentives and financial-fiscal benefits, that have been granted or extended by another federated unit of the same region.

Therefore, since the Decree only provides general guidelines for the IncentivAuto, we recommend the monitoring of the complementary norms that will regulate such regime.