The State of Amazonas filed before Supreme Court Reclamation No. 15,819/AM, whose Reporting Justice is Ricardo Lewandowski, aiming at suspending effects of the legislation of the State of São Paulo that allegedly granted again benefits that had been judged unconstitutional within the scope of Action for Unconstitutionality (ADIn) No. 4,635.
This Action had been filed by the State of Amazonas aiming at declaring the unconstitutionality of legal provisions of the São Paulo legislation that granted the following benefits to the informatics industry: (i) presumed credit of 7% on the remittance of tablets; and (ii) reduction of taxable basis on internal and interstate remittances to non-ICMS taxpayers of informatics products that also benefited from the incentives provided by Law No. 8,248/91 (Basic Productive Process - PPB) so that the effective tax burden was 7%.
When analyzing the injunction claimed in ADIn No. 4,635, the decision suspended the application of the challenged provisions due to the lack of authorization from CONFAZ, and it also forbade the State of São Paulo to enact rules concerning the same tax benefits.
Notwithstanding that, after this decision, the State of São Paulo enacted a legislation revoking with retroactive effects the benefits previously granted unconstitutionally and created (i) reduction of taxable basis so that the effective burden is of 12% on transactions with products manufactured in accordance with PPB rules (SF Resolution No. 14/13); and (ii) presumed credit of 7% on interstate transactions and on the tax burden concerning internal transactions (Decree No. 58,876/13).
Also concerning the matter tax benefits, but now the ones granted by other States, the State of São Paulo modified its legislation in order to charge from its local taxpayer the amount of tax corresponding to tax benefits granted by other States (Decree No. 58,918/13).
According to the State of Amazonas, the judicial ruling rendered under ADIn No. 4,635 has been violated by the enactment of such rules, since the State of São Paulo created tax benefits materially identical to the ones previously suspended by the STF.
The records of Reclamation No. 15,819 are with the Reporting Justice since 07.15.2013 for the injunction claim to be examined.