The Superior Chamber of the Court of Taxes and Fees of the State of São Paulo (TIT) judged, in the thematic session held on March 24, appeals that deal with the cancellation of ICMS credits arising from the acquisition of taxpayer goods from the Manaus Free Zone, which enjoys benefit granted by the state of Amazonas.

Complementary Law 24/75 provides that ICMS tax benefits can only be granted by states after approval of an agreement by the National Council for Business Policy (Confaz). The only exception is provided for in Article 15 of Complementary Law 24/75, which establishes: "The provisions of this Law does not apply to industries installed or that come to settle in the Manaus Free Zone, being forbidden to the other Units of the Federation determine the exclusion of tax incentive, premium or stimulus granted by the State of Amazonas".

Prevailed in the TIT, however, the position that the benefits granted by the state of Amazonas to taxpayers located in the Manaus Free Trade Zone need to have approval of agreement by Confaz. Thus, according to the court, the state of São Paulo would not be obliged to admit the credit bookkeeping of ICMS highlighted in the tax documents of purchase of goods, if the manufacturer enjoys benefit granted by the state of Amazonas and there is no payment of the tax at the origin.

We understand that the court conferred the mentioned provision too restrictive interpretation, which does not agree with the rule and legal regime applicable to the Manaus Free Trade Zone. There are, therefore, solid legal arguments to defend a position contrary to the court's decision.