The Superior Court of Justice recently ruled in favour of a taxpayer recognising its rights to record Interestadual e Intermunicipal e de Comunicação (State VAT or "ICMS") on assets which were remitted under free loan agreements to its clients. The decision, though not binding to other companies, represents a useful precedent in favour of certain industries such as food (ice creams, beverages, beers, etc.), fuel and communications where the lending of assets (such as fridges, mobile phones, etc.) is a marketing strategy to promote sales.
The discussion on whether such assets should generate credits result from the fact that the State tax authorities may adopt a narrow interpretation and understand that the assets are not being directly applied into the companies activities, given that they are actually used in a third party’s business. Nevertheless, the Superior Court understood that the lending of such products is comprised within the business activity of the owner of the assets (for example, manufacturing and sale of beers), regardless of being located in the premises of its clients.