On August 1st, 2018, the 25th Chamber for Civil Affairs of the TJRJ dismissed an appeal filed by the State of Rio de Janeiro, and maintained a first level decision, that the levy of ICMS should not apply to the extraction of crude oil, as established by State Law # 7,183, of 12.29.2015.

At the trial, the following grounds were recognized as valid:

(a) that Complementary Law # 87/96 did not establish that the extraction of petroleum from the Production Measurement Points of respective wells should be an ICMS triggering event;

(b) that there should be no legal transfer of ownership of the crude oil extracted, but rather an original acquisition of that property by the concessionaire, since a distinction should be made between the deposit of crude oil (owned by the Union) and what is ultimately extracted from it (original property of the concessionaire); and

(c) the extraction of crude oil by the concessionaire and its passage through the measurement point established by the National Agency of Petroleum, Natural Gas and Biofuels – ANP are not sufficient to fulfill the constitutional requirements for the levy of ICMS, notably the supply of merchandise within a commercial environment.

We believe that this case is the first to be judged by the TJRJ on an appeal against a final first level decision and certainly can be used as an important precedent by other taxpayers with ongoing judicial proceedings on the subject.

The SVMFA team has participated in the case and is available to provide any clarification requested.