The effects of the ICMS levy on oil and gas extraction were suspended by an injunction provided by the judge of the 11th Court of Public Treasury.
The Judge of the 11th Court of Public Treasury granted an injunction, dated March 21, 2016, based on the fact that during the original acquisition of oil and gas there is no transfer of ownership at the time of extraction. Therefore, the oil extraction cannot be considered an ICMS tax event.
In this context, the decision recognizes that the extraction cannot be characterized as movement of merchandises for ICMS purposes, according to section 155, item II of the Brazilian Constitution.
The decision also took into account that only the Complementary Law of General Rules No. 87/1996 can define ICMS tax events and its calculation basis, and therefore Law No. 7,183/2015 has directly violated the Brazilian Constitution.
Finally, please note that the decision only affects the parties involved in the Lawsuit and it is not applicable to others taxpayers not listed as a Plaintiff.