By means of a non-unanimous decision published on 10.22.2013, the Superior Panel of São Paulo Court of Taxes and Fees granted relief to a Special Appeal filed by a taxpayer to cancel an infraction notice that charged ICMS on the import of medical equipments under leasing agreement.
In the case, a company that acts in diagnosis sector imported medical equipment under a leasing agreement.
The decision was favorable to the taxpayer and, as indicated in the vote of the reporting judge, Antônio Augusto Silva Pereira de Carvalho, the Superior Panel of TIT-SP had already acknowledged the non-imposition of ICMS on leasing, which was pacified by proceedings DRT-8-519026/2007 and DRT-C-I-0202542/2007.
Concerning the first case mentioned by the reporting judge, proceeding DRT-8-519026/2007 (Reporting Judge Egle Prandini Maciota), the Treasury’s Special Appeal was denied relief under the argument that (i) leasing is not circulation of products; (ii) Section 3, VII, of LC87/96 forbids the imposition of ICMS under those circumstances, which applies both for interal transactions with leasing and import transactions.
In the second proceeding, DRTCI-0202542/2007 (Reporting Judge Vanessa Pereira Rodrigues Domene), the taxpayer’s Special Appeal was granted under the following grounds: (i) the imposition of ICMS is conditioned to the transfer of ownership over the product, not to the mere physical movement; (ii) for leasing, there is no transfer of ownership, as acknowledged by RE 461,968/STF; although the wording of Section 155, § 2º, IX, “a”,of the Federal Constitution as amended by EC 33/2001 allows imposition of ICMS-Import on the clearance of any type of product, it does not allow the imposition of ICMS on the entry of a good from abroad that does not result in economic movement.
(TIT - DRT-4-687658/2005 (Infraction notícia 3.042.706)).