On January 25, 2013, the Superior Chamber of Administrative Tax Court of the State of São Paulo published a decision (Tax Assessment nº 3.152.222-1) on the statute of limitation for the ICMS amounts assessed on interstate operation of remittance of imported goods from the State of Espírito Santo, using the FUNDAP benefits.
First it should be clarified that the prevailing interpretation was that the initial term to count the lapse of right would be the one established in Article 173, item I of the Brazilian Tax Code (Código Tributário Nacional - “CTN”), according to which the right of the Public Treasury to constitute the tax credit extinguishes after five years from the first day subsequent to the one when the assessment could take place, even in the absence of evidence of sham, fraud or simulation.
Such interpretation was adopted because the judges believed that there was no assessment by the book recording of the ICMS and there was no payment of any ICMS amount to the State of São Paulo. Thus, the Tax Authority of the State of São Paulo would have to make the assessment, and apply, accordingly, the counting rule established in Article 173 of the CTN.
Additionally, according to the defense arguments, it was argued that the ICMS had been effectively paid and recorded in the fiscal documents, though for the State of Espírito Santo and for this reason Article 150, paragraph 4 of the CTN should be applied, which sets forth that the initial date to count the term of the lapse of time is the date when the tax event takes place.
In this context, the significance of such decision of the Superior Chamber of Taxes and Charges of the State of São Paulo should be emphasized, because the interpretation favorable to the application of the statute of limitation in the terms of Article 150, paragraph 4 of the CTN prevailed, contrary to the interpretation adopted mostly in recent years.
(Assessment Notice n. 3.152.222-1).