Firstly, it is relevant pointing out that bonus products correspond to a type of discount represented by the delivery of a higher amount of products, instead of a reduction of the sales price.
The Superior Court of Justice (STJ) had decided that the ICMS is not imposed on bonus products.
Recently, the 1st Panel of the STJ decided that the companies may request the reimbursement of ICMS unduly paid for the last 10 years on bonus products. According to this decision, the taxpayer may use the ICMS credit of the last 10 years to deduct from the tax to be collected.
This recent STJ precedent states that the provision of Section 166 of the National Tax Code, which determines that the taxpayer requesting the reimbursement must prove that it did not transfer the tax burden to a third party, does not apply when the good is delivered for free. As stated by the Reporting Justice, no ICMS is due for bonus products; thus, no ICMS burden can be transferred to the final consumer. The State of São Paulo Treasury may appeal.
(Valor Econômico, 05.07.2013, p. E1).