The Senate Resolution No. 13 of 2012 ("Resolution 13/2012") was officially published and unified the rate applicable to interstate operations involving assets and goods imported from abroad.

According to Resolution 13/2012, a 4% ICMS tax rate will apply to interstate operations involving imported assets and goods, irrespective of the State of origin or destination of the products.

The 4% rate will not apply to interstate operations involving the following assets or goods:

i) Imported natural gas;

ii) Items that have no similar domestic product to be defined in a specific list to be issued by the Foreign Trade Chamber (Câmara de Comércio Exterior - Camex);

iii) Items resulting from a manufacturing processing in the terms of the Basic Productive Process (Processo Produtivo Básico - "PPB") referred to in Decree Law nº 288, of February 28, 1967 (Manaus Free-Trade Zone), and Laws nºs 8.248, of October 23, 1991 (IT Law); 8.387, of December 30; 10.176 of January 11, 2001; and 11.484, of May 31, 2007 (PADIS);

iv) Items submitted to a manufacturing process, from which results a product with an Imported Content of less than forty per cent.

According to the Resolution, Imported Content is the percentage corresponding to the ratio between the fraction imported from abroad and the total amount of the interstate exit operation involving the assets or goods. Such ratio may be assessed according to the following formula:

The Resolution also granted authority to the National Council of Fiscal Policy (Conselho Nacional de Política Fazendária - "CONFAZ") to issue rules establishing the definition of the criteria and procedures for the Certification of Imported Content (Certificação de Conteúdo Importado - "CCI").

Such Resolution will be effective for the interstate operations carried out as of January 1st, 2013.

We recommend that our clients carry out a detailed analysis of the possible impacts consequent of the new rate applicable to their operations.

Resolution of the Federal Senate n° 13, of 2012.

Establishes the rates of the Tax on Operations in Connection with the Circulation of Goods and Provision of Interstate and Intermunicipal Transportation and Communication Services (ICMS), in interstate operations with assets and goods imported from abroad.

Art. 1 The rate of the Tax on Operations in Connection with the Circulation of Goods and Provision of Interstate and Intermunicipal Transportation and Communication Services (Imposto sobre Operações Relativas à Circulação de Mercadorias e sobre Prestação de Serviços de Transporte Interestadual e Intermunicipal e de Comunicação - ICMS), in interstate operations involving assets and goods imported from abroad, shall be of four per cent ( 4%).

§ 1 The provision herein applies to assets and goods imported from abroad which, after customs clearance:

I – were not submitted to a manufacturing process;

II – though submitted to any transformation, processing, assembly, packing, re-packing, renewal or overhauling, result in goods or assets with an Imported Content higher than forty per cent (40%).

§ 2 The Imported Content referred to in item II, § 1, is the percentage corresponding to the ratio between the portion imported from abroad and the total amount of the interstate operation with the goods or asset.

§ 3 The National Council of Fiscal Policy (Conselho Nacional de Política Fazendária - Confaz) may establish rules to define the criteria and procedures for the process of Certification of Imported Content (Certificação de Conteúdo Importado - CCI).

§ 4 Provisions in §§ 1 and 2 do not apply to:

I – the assets and goods imported from abroad which do not have a similar domestic product, to be defined in a list to be issued by the Board of Ministers of the Foreign Trade Chamber (Conselho de Ministros da Câmara de Comércio Exterior - Camex) for the purposes of this Resolution;

II – the assets produced according to the basic production processes referred to in Decree-Law nº 288, of February 28, 1967,and Laws nºs 8.248, of October 23, 1991, 8.387, of December 30, 1991, 10.176, of January 11, 2001, and 11.484, of May 31, 2007.

Art. 2 The provisions in this Resolution do not apply to the interstate operations with imported natural gas.

Art. 3 This Resolution shall be effective as of January 1st, 2013.

This Bulletin has been prepared with the cooperation of attorney Diogo Martins Teixeira.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.