Extraordinary Appeal filed by Total Distribuidora Ltda. against a decision issued by State of Goiás Court of Appeals, which denied the company’s right to offset ICMS credits originated from the acquisition of anhydrous alcohol, a transaction subject to deferral. The company argues that there was violation of Section 155, §2, I of the Federal Constitution, since this concerns deferral, not exemption or non-imposition of taxes (which is disallowed by 155, §2, II, “a” of the Federal Constitution).
As mentioned by the Reporting Justice, the Appellant does not perform activity of fuel refinery. It is a wholesaler, which purchases anhydrous alcohol from plants (with deferral) to mix with A-type Gasoline purchased from the Refinery to produce B-type Gasoline in the end. When it purchases anhydrous alcohol, it cannot register credits although it is an input of the final product, because there is deferral. When acquiring A-type Gasoline from the Refinery, it cannot register credits either, because it is substituted by it, not concerning the product purchased, but concerning the product it will produce: C-type Gasoline (75% of A-type Gasoline and 25% of anhydrous alcohol).
The Appeal waits for trial, which will serve as guidance to all other courts in Brazil.
(Extraordinary Appeal No. 781,926/GO).