CAT Ordinance No. 59, published on July 6th by the State of São Paulo, governs the activities of logistics operators that store goods belonging to third-party ICMS taxpayers. Among the relevant points, we highlight:

  • Concept of logistics operator

    According to article 1 of the ordinance, a logistic operator is considered to be a company whose economic activity is the provision of logistics services and that, predominantly, carries out the storage of goods from third-party ICMS taxpayers, with responsibility for the custody, conservation, and movement of such goods in the name and on behalf of third parties;

  • ICMS in the shipment of products to logistics operators

    In accordance with article 5 of the ordinance, when the goods are shipped internally to a logistics operator, the depositor establishment must issue a tax invoice, which must contain, in addition to the other requirements set forth in the legislation: (a) the state registration of the logistics operator; (b) the nature of the operation: "Other Shipments - Remittance to Temporary Deposit"; (c) CFOP 5,949; (d) in the Supplementary Information field, the expression: "Shipment to Temporary Deposit - CAT Ordinance 59/2018"; and (e) highlighting of the ICMS, if the depositor establishment falls within the periodic calculation regime - RPA.

  • ICMS in the logistics operator's return operations

    Pursuant to the terms of article 6 of the ordinance, on the occasion of the return of the goods to the depositor establishment, the latter shall issue the invoice related to the entry of the merchandise in its establishment, which shall contain, in addition to the other requirements set forth in the legislation: (a) the state registration of the logistics operator; (b) the nature of the operation: "Other Entries - Return from Temporary Deposit"; (c) CFOP 1,949; (d) in the Supplementary Information field, the expression: "Return from Temporary Deposit - CAT Ordinance XX/2018 (indicate the number of this ordinance)"; (e) highlighting of the ICMS, if the depositor establishment is included in the periodic calculation regime - RPA; and (f) an indication, in the group "Referenced Tax Document Information", of the access keys for the invoices related to the shipments for temporary storage that contain the items of the Return from Temporary Deposit.

  • Triangular operation (direct exit of the merchandise from the logistics operator)

    Pursuant to the terms of article 7 of the ordinance, in the case of goods leaving directly from the facilities of the logistics operator to a person other than the depositor, the latter must:

    -         issue an invoice containing, in addition to the other requirements set forth in the legislation: a) the value of the transaction; b) the nature of the operation; c) highlighting of the taxable amount, if due, if the depositor is included in the periodic calculation regime - RPA; d) indication that the merchandise will leave temporary storage - logistics operator, the address and the numbers of the state registration and CNPJ of the latter; e) indication of the number, series, and date of issue of the invoice referred to in item II;

    -         issue an invoice for the purposes of symbolic return from the temporary storage, observing the provisions of article 6, and explaining, in relation to the expressions contained in items II and IV of the article, that it is a "symbolic return";

    -         send to the logistics operator the data from the invoices referred to in items I and II, to be kept at the disposal of the Tax Authorities.

The following is the full text of the ordinance for analysis and comments:

The Coordinator of the Tax Administration, in view of the provisions of article 489 of the ICMS Regulation, approved by Decree 45,490, of November 30, 2000, issues the following ordinance:

Article 1. Logistics Operators who do not carry out operations subject to ICMS, who receive goods belonging to taxpayers of said tax established in the São Paulo territory must observe, in addition to the other provisions set forth in the legislation, the provisions of this ordinance.

Sole paragraph. For the purposes of this ordinance, a Logistics Operator is considered to be a company whose economic activity is the provision of logistics services, primarily by storing goods from third-party ICMS taxpayers, with responsibility for the custody, preservation, and shipment of these goods, in the name and on behalf of third parties.

Article 2. Logistics Operators established in this State must register in the register of taxpayers of the ICMS with code 5211-7/1999 of the National Classification of Economic Activities - CNAE, through the use of the Online Collection - PGD Program of the CNPJ (CNPJ Web version) available on the website of the Brazilian Federal Revenue Service, however, in relation to the activity covered by this ordinance, the issuance and bookkeeping of tax documents and books is exempted, without prejudice to the joint and several liability provided for by law, especially in items XI and XII of article 9 of Law No. 6,374, of March 1st, 1989.

Article 3. The provision of the logistics services provided for in article 1 shall be documented by a private agreement between the depositor and depositary parties.

Paragraph 1. The depositor establishment shall prepare a monthly statement under the heading "Physical Control of Goods Stored with a Logistics Operator", which shall present at least the following information:

1 - access key, number, series, and date of the Invoices relating to the entry and exit of goods during the month; and

2 - amounts shipped for deposit, returns, and balance of stock held at the depositary establishment at the end of each month.

Paragraph 2. Logistics Operators shall maintain at the disposal of the Tax Authorities a computerized accounting and stock control system, which shall enable the monitoring of operations carried out in the manner governed in this ordinance, and shall demonstrate, in an individualized manner for each depositor, at least the following information:

1 - access key, number, series, and date of the Invoices relating to the entry and exit of goods during each month;

2 - date of actual receipt of the goods for deposit and, if applicable, the respective date of exit from the depository establishment; and

3 - amounts received for deposit, returns, and remaining balance of inventory at the end of each month.

Paragraph 3. The documents and information referred to in this article shall remain at the disposal of the Tax Authorities for the period provided for in article 202 of the ICMS Regulation, approved by Decree No. 45,490, of November 30th, 2000.

Article 4. The ICMS taxpayer that sends goods for deposit at the Logistics Operator's premises must indicate at least the following data from the contract referred to in article 3 in the book Registration of Use of Tax Documents and Model Terms:

I - the name of the company hired and the respective state registration;

II - the dates of commencement and termination of the contract.

Article 5. On the occasion of the internal shipment of merchandise destined to the Logistics Operator, the depository establishment shall issue an Invoice, which shall contain, in addition to the other requirements set forth in the legislation:

I - the state registration of the Logistics Operator;

II - the nature of the operation: "Other Exits - Shipment for Temporary Deposit";

III - CFOP 5,949;

IV - in the field Supplementary Information, the expression: "Shipment for Temporary Deposit - CAT Ordinance XX/2018 (indicate the number of this ordinance)";

V - highlighting of the ICMS, if the depositor establishment falls within the periodic calculation regime - RPA.

Sole paragraph. In the event that a depository establishment that collects ICMS under the simplified tax regime, taxation shall occur only on the exit referred to in article 7, in accordance with what is set forth in paragraph 1 of article 3 of Complementary Law No. 123, of December 14th, 2006.

Article 6. Upon the return of the goods to the depositor establishment, the latter shall issue an invoice relating to the entry of the merchandise in its facilities, which shall contain, in addition to the other requirements set forth in the legislation:

I - the state registration of the Logistics Operator;

II - the nature of the operation: "Other Entries - Return from Temporary Deposit";

III - CFOP 1,949;

IV - in the field Supplementary Information, the expression: "Return from Temporary Deposit - CAT Ordinance XX/2018 (indicate the number of this ordinance)";

V - highlighting of the ICMS, if the depositor establishment falls within the periodic calculation regime - RPA.

VI - indication, in the “Referenced Tax Documents Information" group, of the access keys of the Invoices related to the shipments for temporary deposit that contain the items of the Return from Temporary Deposit.

Paragraph 1. In the case of a depository establishment within the periodic calculation regime - RPA, it may be credited with the amount of the tax levied in the operations referred to in article 5, in the same period of calculation in which the return of the merchandise occurs.

Paragraph 2. In the event of a depository establishment that collects ICMS under the simplified tax regime, taxation shall occur only on the exit referred to in article 7, in accordance with what is set forth in paragraph 1 of article 3 of Complementary Law No. 123, of December 14th, 2006.

Article 7. In the event of exit of goods directly from the Logistics Operator's facilities to a person other than the depositor, the latter must:

I - issue an Invoice containing, in addition to the other requirements set forth in the legislation:

a) the value of the operation;

b) the nature of the operation;

c) highlighting of the amount of the tax, if due, if the depositor is included in the periodic taxation regime - RPA;

d) indication that the merchandise shall leave temporary deposit - Logistics Operator, the address and the state registration and CNPJ numbers of the latter;

e) indication of the number, series, and date of issue of the Invoice referred to in item II;

II - issue an Invoice for the purposes of symbolic return from temporary deposit, observing the provisions of article 6, and explaining, in relation to the expressions contained in items II and IV of said article, that it is a "Symbolic Return";

III - to send to the Logistics Operator the data from the Invoices referred to in items I and II, to be kept at the disposal of the Tax Authorities.

Paragraph 1. The merchandise shall be accompanied in its transportation by the Invoice provided for in item I of the head paragraph.

Paragraph 2. In the event that a depository that collects ICMS under the national simplified tax regime, the operation referred to in item I shall be included in the calculation basis for purposes of taxation under said regime.

Article 8. The Invoice referred to in article 6 or item II of article 7, as the case may be, shall be registered by the depository in the book Registration of Entries, according to the terms established in the legislation.

Article 9. In the internal exit of merchandise for delivery to the Logistics Operator, in the name of and to the account and order of the acquiring establishment, both located in this State, the acquiring establishment shall be considered the depositor, and the sender must issue an Invoice, which shall contain, in addition to the other requirements set forth in the legislation, the following information:

I - as addressee: the acquiring establishment;

II - as place of delivery: the establishment of the Logistics Operator, therein stating the company name, address, and state of registration and CNPJ;

III - highlighting of the ICMS.

Paragraph 1. The acquiring institution (depositor) shall:

1 - register the Invoice referred to in the head paragraph in the book Registration of Entries;

2 - issue an Invoice regarding the symbolic exit to the Logistics Operator, with emphasis on the tax, also stating the number and date of the tax document issued by the sender.

Paragraph 2. The acquiring establishment (depositor) and the Logistics Operator shall observe, as appropriate, the other provisions of this ordinance.

Paragraph 3. The credit of the tax, when applicable, shall be granted to the acquiring establishment (depositor).

Article 10. This ordinance shall enter into force on the date of its publication.