The São Paulo state government has issued five decrees that amend the ICMS Regulation (RICMS / SP) and re-establish some of the tax benefits listed in Annex I of the RICMS / SP, as described below:

  • Decree nº 65.469 / 21 - Alters item I of article 29 of Annex I of the RICMS, in order to remove the monthly limit for the enjoyment of the exemption on electric energy consumed by the rural establishment, which would come into force on 1/15/2021, thus maintaining the same conditions as the benefit in effect until that date.
  • Decree nº 65.470 / 21 - Amends § 7 of article 54 of the RICMS, which aims to maintain the tax burden on internal operations with generic drugs, so that such operations are subject to the rate of 12%, without the application of the supplement of 1.3%.
  • Decree No. 65.472 / 21 - Repeals Paragraph 6 of Article 36 and Paragraph 2 of Article 104, both of Annex I of the RICMS, to maintain the full exemption from ICMS in internal operations with natural fruit and vegetables.
  • Decree nº 65.473 / 21 - Repeals § 6 of art. 41 of Annex I of the RICMS, to maintain the full exemption granted to internal operations with agricultural inputs.

Decree nº 65.471 / 21 does not refer to tax benefits, but changed article 265 of the RICMS, in order to provide for the mandatory payment of the supplement of the withholding tax for tax substitution for all forms of fixing the calculation basis.

This is an important point because, although the discussion on the legality of the institution of this complementation by ordinary law remains - Law nº 17.293 / 20, which added article 66-H to Law nº 6.374 / 89 - this decree makes it clear that “currently, the RICMS provides for the payment of the supplement only in the event that the calculation basis is the final consumer price, single or maximum, authorized or fixed by the competent authority, and therefore does not apply in situations where the tax is calculated using application of the added value margin or average price surveyed to the consumer ”.

In view of the changes, taxpayers must review the tax rules for their products.