CRÉDITO DE ICMS NO FRETE: QUANDO É PERMITIDO?

Added: 2026-05-31

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[00:01:43]Hello everyone, welcome to today's live stream here on Net Fiscal. It's a pleasure, okay? Here with you all again today so we can talk about a subject that, despite the current focus being on tax reform, we can't forget that the current taxes will still be in place for some time.

[00:02:13]So today's discussion will focus on the ICMS tax, which is a tax that will effectively remain in effect until 2032. However, we'll highlight a particular aspect of the state of São Paulo, and other states as well, focusing here on the legislation of the state of São Paulo, which is the possibility, or lack thereof, of claiming ICMS credits. In the contracting of transportation services, when I have operations that are not subject to ICMS (Brazilian state sales tax), then I can have operations of shipment, supply, and circulation of products with exemption, non-taxation, or deferral, right? In other words, if a transaction involving the circulation of goods is not subject to CMS taxation for some specific reason, whether due to non-incidence, a shipment for repair, for example, a transaction with CMS suspension, a sale specifically for export, a transaction not subject to ICMS, an actual export transaction, a transaction with CMS deferral, or even a taxed transaction. As a company or professional, you can identify whether, when carrying out a merchandise circulation operation that may have any differentiated CNS treatment, the freight linked to this operation can generate CNS credits or not. So, the goal here is to share these issues with you.

[00:03:59]Feel free to interact here via chat. It will be a pleasure to be here discussing this subject with you, so that we can, at the end of our chat, clarify these points so that you can apply the legislation appropriately. I'm going to share the material here so I can bring it to you all. Just a moment, I'm putting it here now, you must be following along, right? So, this material provides information about the possibility of using CMS tax credits when contracting transportation services. When there are exempt output operations, zero, non- taxable, right? And bringing in the legislation of the state of São Paulo, including also answers to consultations on the subject.

[00:05:01]So, as I said, feel free to interact. The goal here is for us to effectively explore this topic with as much information as possible.

[00:05:13]Okay, folks, let's go. In order for us to effectively assess whether a given transaction can or cannot generate CMS credit, it is fundamentally important that we first understand the principles for the purposes of appropriation, prohibition, and reversal of CMS credit. So, there is no doubt that the first point we need to observe here is the understanding of the principle of non-cumulative taxation, as stipulated in the legislation of the state of São Paulo in articles 59 to 65 of the ICMS (Tax on Circulation of Goods and Services) regulations of São Paulo. So, what is the basis for the general rule of non-cumulative ICMS (Brazilian state sales tax)? And here, not only in the state of São Paulo, but in other states as well, we have this guideline because it's a constitutional rule. So you'll find what I'm saying here in our conversation in article 155, paragraph 2 of the Federal Constitution.

[00:06:18]Generally speaking, folks, for a transaction to generate a CMS credit, it must be linked to a transaction that generates a CMS debit. So, in other words, I can only take advantage of CMS credits in transactions if that transaction is linked to a transaction that generates a debit. In other words, I am carrying out a transaction that generates a CMS debit, and as a general rule, I am entitled to a credit. If it's a transaction that doesn't generate a CMS debit, it's an exempt transaction, and therefore I'm not entitled to a CMS credit. If it's a transaction that generates a proportional CMS debit, it's a transaction with a reduced tax base. If I have a reduced tax base, the Constitution establishes that the credit must also be proportional to the amount taxed.

[00:07:21]So, if I tax 60% of the transaction, my credit must be proportional to 60% of the transaction. So, that's the principle we find in the Federal Constitution, unless there's a provision to the contrary. And what is the contrary provision?

[00:07:40]When can I carry out an outbound transaction that is not subject to ICMS taxation, then an export? So here I am carrying out an outbound transaction for a recipient abroad. The transaction is exempt from ICMS (Value Added Tax), and the legislation has a provision to the contrary, stating the following: although there is no ICMS debit in this outgoing transaction, the taxpayer may retain the credits linked to this transaction. So here we have the opposite option available, specifically. So we need to have this explicitly stated here, folks, because the general rule is 100% tax on output, 100% credit on input. Tax is 0% on output, due to an exemption, a non- incidence, resulting in 0% credit on input. I pay a 60% tax on output, and I have a proportional 60% credit on input, unless otherwise stipulated. So, in order for us to have the concept of credit here, I first need to know the rule applicable to debit. Since this is a fully taxed transaction, I will have my full credit recorded in the incoming transaction. Even if the transaction is fully tax-exempt, I will not be entitled to the appropriate credit upon entry; if it is a partially tax-exempt transaction, my credit will also have to be proportional to the portion of the transaction that is taxed.

[00:09:28]So we can identify this provision in the Federal Constitution, and then we go down to the regulatory level and we can find it in article 60 of the ICMS (Tax on Circulation of Goods and Services) regulations of the state of São Paulo. Credit is not allowed on inputs when the output is not taxed.

[00:09:47]So, in other words, if I don't have taxation on the output transaction, as a general rule, my credit is also prohibited on the input transaction. If I recorded the credit at the time of entry, I will have to cancel that credit because it is linked to a non-taxable output transaction. So here is the main rule matrix of ICMS. Because I don't have taxation on the output, I don't have the right to a credit on the input. If at the time of entry I was unable to identify whether or not that exit would be taxed, then at the time I made the exit, I will have to go back to the entry point and check what treatment I will have to apply. In other words, if I recorded a taxable output, I can retain the credits on the input. If I recorded a non-taxable output, I am not entitled to maintain the credit on the input. So, article 60 basically mirrors what we have here in the provision of article 155 of the Constitution, establishing, therefore, within this premise, that I only have credit if I have debit. If I have no debit, I have no credit. If my debit is proportional, my credit is proportional. So, we have this detail in article 60 of the ICMS regulations of São Paulo, right? In article 61 he reinforces this position.

[00:11:12]Articles 62 through 65 deal with the formalization of this. You need to have the tax document, a valid document, and my supplier needs to have their state registration enabled. So, he then brings up the formalities of how this will actually be cut.

[00:11:30]So, having raised these main issues, what are we going to have to start evaluating? each specific situation is necessary to effectively determine whether, in that particular situation, I will be able to register the ICMS credit or not. Here we're talking about general rules, but our focus here is effectively on providing a transportation service. And here we could cite countless situations. I can hire a freight service to handle a shipment for warehousing. Can I hire a freight service to ship an item for repair? I can hire a freight company to carry out an export operation. Can I hire a freight service to transport a product that is exempt from CMS (a Brazilian sales tax)? So, in other words, we have several situations where the freight, which is normally taxed by ICMS (Brazilian state sales tax), is linked to a transaction that may not have a ICMS debit. So, within this context, how am I actually going to address the issue of credit utilization here? I'll go to article 66.

[00:12:41]Article 66 states the following, unless otherwise provided. So, in other words, we're going to have to identify it. If there is any provision to the contrary, I will not apply those rules. If it doesn't exist.

[00:12:55]Article 66, second paragraph.

[00:12:59]ICMS credit is prohibited when I contract a transportation service that is linked to a transaction exempt from ICMS.

[00:13:09]If I am conducting a transaction that is exempt from CMS (state sales tax), as per item three, I am also prohibited from claiming a tax credit. If I am carrying out a transaction involving a product that has a reduced tax base, the credit must be proportional.

[00:13:25]Looking at the operation itself, the first paragraph of article 66 of the ICMS regulation of São Paulo stipulates that these conditions that we have just discussed here are applicable to transportation services.

[00:13:42]So, in other words, for any freight I contract linked to a tax-exempt outbound transaction, I will treat the freight the same way I treat the tax-exempt product.

[00:13:55]If I am promoting the sale of a product with a reduced ICMS tax base, I will apply the same treatment to the freight credit as I do to the product itself. So, in other words, the treatment of credit here will be linked to the treatment of the product or operation that I am carrying out. Article 66, paragraph one of the ICMS regulations of São Paulo. The treatment of the outbound shipment will be extended to the freight. So, for the purposes of claiming CMS tax credits on freight, I will have to identify if, in the transaction I am carrying out, there is any provision to the contrary that allows the credit to be maintained. If it doesn't exist, I'll have to either reverse the credit or not allocate the credit in this transaction. So, guys, this is a general rule, okay? So, if we look at this arrangement here, for a taxed product, the freight associated with this taxed product transaction is eligible for credit. For non-taxable products, the freight associated with the transport of these non-taxable products will not generate a credit. For products subject to partial taxation and a reduced tax base, the ICMS (Brazilian state sales tax) credit on freight will also be proportional. So I have to identify the tax rate to know the freight rate. If my calculation base is reduced to 60%, I will also reduce the freight credit to 60%. And so on. So this provision is clearly stated in article 66, paragraph one. And that's what we're going to apply to all situations, including transportation services. Now, how can those of you who work in this field on a daily basis identify situations like this? We will then begin to assess legislative issues. So, in other words, there are exempt transactions, transactions that are not taxed. So how are we going to evaluate article 67 and article 68 of the ICMS regulations? They've already given us some guidelines here. Article 67 is already specific.

[00:16:12]I have to become credit. In what situations? If I have an output that is not taxed and I have reclaimed the credit on the input. Why? I was unable to identify that I would have a subsequent sale or output subject to taxation at the time of entry. So I'll have to effectively become the figure here for the CMS credit that extends to shipping. So article 67, paragraph three, says the following: the same treatment you give to the product, you will also extend to the shipping. Already in article 68, he begins to introduce the opposite provision.

[00:16:53]When you don't need to reverse the credit, article 68, paragraph one, export. So, if you carry out an export operation of products, and the export operation is not subject to ICMS (a Brazilian state tax), what will happen?

[00:17:09]and the credits linked to that transaction and the freight that I have linked to that transaction. I am not obligated to become [the creditor], because I have an express provision to the contrary here, stating that the credit can be maintained.

[00:17:26]So, you see here, we're facing an exception where I don't have a debit on the outgoing transaction, but the freight linked to that outgoing transaction, which isn't subject to taxation, can be maintained as expressly stipulated, unless otherwise stated. This is the device that we will have to observe in each operation you carry out so that we can verify whether or not the ICMS credit on freight can be claimed. Exporting is the general rule here, but Douglas, what about things that are n't the general rule?

[00:18:04]We'll start evaluating specific situations now. I'm giving you an example here.

[00:18:11]ICMS regulations of the state of São Paulo, ICMS exemption, Annex One of the ICMS regulations of the state of São Paulo. We have a list there of operations that are exempt from CMS. And I'm going to give you a specific example [clearing throat] of farm-grown fruit products.

[00:18:37]If we go to the supermarket, for example, or to the farmers' market, for example, which sells produce such as fruits, flowers, vegetables, and legumes, the government's objective is to exempt the ICMS (a Brazilian sales tax) so that the product becomes cheaper for us consumers.

[00:18:58]However, the product itself is exempt from ICMS (Brazilian sales tax). Article 36 of Annex 1. So, flowers, vegetables, and legumes are exempt from CMS (a Brazilian sales tax), but for the product to reach our table, it leaves the producer, goes to a distributor who then sells it to a retailer who then resells it to us, the final consumers.

[00:19:27]So, we have these product marketing operations that are exempt from ICMS (Brazilian sales tax). And in order for the product to leave the producer, go to the wholesaler, go to the retailer and reach the consumer, we have freight, which is used to make the transportation possible. The freight, personally, is taxed by IMS, but I can claim the credit linked to this sales transaction. I 'll have to identify if the provision that exempts ICMS from transactions involving grain-fed products has a contrary clause. And look what we have in paragraph 2 of article 36 of annex 1 of the ICMS regulation.

[00:20:20]The reversal of the tax credit related to goods benefiting from the exemption provided for in this article will not be required. So, in other words, within this context, if I have a provision to the contrary, stating that even if I carry out a transaction exempt from CMS (a Brazilian sales tax), the credit reversal will not be required, this also applies to all transactions linked to that exemption transaction. They are within this framework, meaning we have a counter-mechanism that allows for the maintenance of credit. Therefore, the product is exempt. Anything related to this transaction, I can maintain the credit, I can, because I have a contrary provision. So, in this scenario, I am contracting the freight service to transport the tax-exempt product. Although the product is not taxed, the ICMS credit on the freight will be allowed because we have an express provision to the contrary, permitting the maintenance of the credit. So, folks, what you should look for in the analysis of the legislation to identify whether or not freight is eligible for credit when a transaction is not taxed, is whether we have provisions like this one that waive the credit reversal. So, from the moment he waives the credit reversal, he's being an exception to the general rule. Remember that the general rule, as we saw in the previous slides, is something I'm returning to here so you can follow along. Article 66, paragraphs 1, 2, and 3. Within this context, if I do not have a taxable transaction, the credit is prohibited. Article 67, if I made the credit entry because I was unaware of this operation, I will have to become... Article 68. Look, but I'm already starting to have exceptions here. Exporting is an exception. And how do I identify the other exceptions?

[00:22:30]In every situation where I'm carrying out a transaction that may or may not be exempt, non-taxable, or have zero incidence, I have to identify if there is a provision to the contrary. So, in this case here, we expressly have the provision here in the ICMS (Tax on Circulation of Goods and Services) regulations of the state of São Paulo, allowing the maintenance of the credit in these situations. So, guys, I see here that we haven't had any interaction via chat yet, but feel free to do so. If you have any points of clarification, any other questions you would like to ask, any specific condition, the goal here is to clarify those points for you, or any points that may arise. But here you can clearly see that even though the transaction is exempt from CMS (a Brazilian sales tax), I am not obligated to convert the credits. So, in other words, if I have a freight charge linked to the transport of a farm-raised fruit product that is being sold with a CMS exemption, I can keep the credit, okay?

[00:23:47]And this is something the tax authorities have already been bringing up in some of their responses to inquiries, because even with the explicit provision here, sometimes taxpayers have doubts about whether the interpretation they are making of these provisions is actually correct.

[00:24:16]So here are two response numbers to your query. Then, if you have a question like: "Ah, Douglas, how do I search here for the answer to a query from the state of São Paulo?"

[00:24:26]Go to Google, type in the query answer, and enter the numbers that are on your screen. Here you will be able to find the full response to the query and you will have the information so that you can effectively evaluate it. And look, here's the answer to the 2017 inquiry.

[00:24:49]I'm transporting containers, packaging, right? You know those packages, pallets, and drums that the company received the product in and needs to return to its supplier, right? And so that he can return it through the supplier, he hires the shipping service, right? So, the merchandise, the packaging, is at his establishment; he will need to return the containers, the sacks, the packaging to the sender, to the supplier. However, this operation is not subject to ICMS (State VAT), because article 82 of annex 1 of the ICMS regulations exempts the transport of containers from ICMS, but I am contracting freight to cover the return of these goods, these packages, to the supplier. Can I claim credit?

[00:25:47]Then we delve into the analysis of article 82 of annex 1 of the ICMS regulations of the state of São Paulo. When we analyze article 82, we find that there is no explicit provision for maintaining the credit. Therefore, if there is no explicit provision for maintaining the credit, the credit for this freight linked to the transport operation of this vanilhan cannot be used. And then the state of São Paulo, through its response to inquiry number 15438, effectively brought about this understanding. In other words, I am prohibiting the ICMS tax credit on these freight transactions when it is linked to an exempt transaction that does not allow for credit maintenance. So here, the tax authorities have already taken a position based on article 66 of the ICMS (Tax on Circulation of Goods and Services) regulations of the state of São Paulo. It has a contrary provision, allowing the appropriation of the credit. No, it doesn't have one. So I have to block the credit, meaning you are not allowed to apply for the credit. So, when I hire a transportation service, ICMS (a Brazilian sales tax) will be itemized on the CTE (electronic transport document), but this ICMS cannot be subject to a tax credit, okay? The other query response, also from 2020, mentions an operation here regarding the exemption of containers. We have the article there, because it's a frequently performed operation, so we can identify the article's wording more easily. However, we could be talking about any other operation that has CMS exemption or non-incidence of CMS. So, for example, if you make a shipment for repair, ICMS (Brazilian sales tax) will not apply.

[00:27:37]When we analyze the taxation of repair shipments, there is no legal provision that allows for the maintenance of credit for these repair shipments. So, within this context, what's going to happen? If there is no explicit provision for maintaining the credit, I cannot claim the freight credit linked to these transactions. Why? Because we are talking about a device that has no taxation without a mechanism that allows for the maintenance of the credit. So, when I have a non-taxable transaction here, it was an exemption, right, in response to the inquiry.

[00:28:20]But any transaction that is not subject to taxation and does not expressly maintain the credit, the TV credit must be granted. And then we can also come across situations, such as the response to the 2024 consultation, where I might have operations that are effectively operations that may or may not be subject to taxation.

[00:28:47]So, within this context, from the moment we have a transaction that is both taxed and not taxed on the same tax document, what will happen?

[00:29:00]For that taxable transaction, I can retain the credit. For that transaction that is not taxed, I have to check if there is an explicit maintenance of the credit. If it exists, I will take advantage of the full ICMS credit on the freight. And if it doesn't exist, I'll have to take advantage of the proportional ICMS credit. So I'll have to identify how the carrier actually calculated the ICMS (Brazilian sales tax) on the freight so that I can prorate what is taxed and whether I'm entitled to a credit. For anything that is not taxed, I am not entitled to a tax credit. So this is very important.

[00:29:33]Leonardo here is also bringing an interesting contribution. I'm going to share his question here, right? Sale to the Manaus Free Trade Zone with ICMS (Brazilian sales tax) exemption. Can I trust the ICMS (Brazilian sales tax) amount shown on the CTE (Electronic Freight Document)? Well, Leonardo, thank you first for your participation here. This is an important topic because, when we carry out an export operation to the Manaus Free Trade Zone, are there any situations in São Paulo state legislation that allow us to maintain the tax credit? In what situations? First, in order to qualify for ICMS tax exemption, we know that it has to be a manufactured product of national origin, right? Here are some characteristics. Or if it's not a manufactured product, then it should be an imported product from a country in which the state, Brazil, has participation in the GAT, meaning it should be imported from a country that is part of the GAT so that it can receive the same treatment here in the national market.

[00:30:41]Generally speaking, if I treat this shipment to the Manaus Free Trade Zone as an operation equivalent to an export, then yes, I am entitled to maintain the ICMS (Brazilian state sales tax) credit on the freight for these tax-exempt operations.

[00:30:59]Why? Because the legislation of the state of São Paulo itself, and the ICMS (Tax on Circulation of Goods and Services) regulations of the state of São Paulo, provide for this type of situation. So, in other words, here we encounter a situation where there is an express provision to the contrary, meaning we are identifying that there is indeed a need for an express provision in order for me to maintain the credit. I hope I've cleared up your question, Leonardo!

[00:31:31]Thanks again for your participation. So, within this context, that's what we're going to effectively highlight here in this operation, okay, everyone?

[00:31:44]Now we can identify other situations here. I'm including farm-raised produce here because there are a number of operations that are exempt from CMS (a Brazilian sales tax), right? So the tax authorities provide several answers to the inquiry, including specifically addressing freight, right? That first one you see here on the left is from 2023, right?

[00:32:11]So, in other words, a wholesale establishment that is selling agricultural products exempt from ICMS (a Brazilian sales tax).

[00:32:20]Can he retain the ICMS tax credit on the freight he contracted for this shipment? He can. The response to the inquiry states that article 36, paragraph 2 of annex 1 of the ICMS regulation of São Paulo, expressly provides that I can maintain the credit. So here's why he brings up the issue of credit?

[00:32:39]because he identified that there is an explicit provision here addressing the concept of credit. The response to the 2022 query below refers to a rural producer who grows oranges there and will actually ship the oranges to the recipient. The orange is exempt, but can he keep the credit? This may be effective due to the express provision to the contrary set forth in Article 36 of Annex 1 of the São Paulo semester regulations. So, folks, these answers to the query here specifically address transactions that are exempt from ICMS (Brazilian state sales tax). And the taxpayers here questioned whether the freight linked to this exempt transaction could then be eligible for CMS credit. So, in order for you to see the full response to the inquiry later, check it out, ask the Net Fiscal team here, that is, they will provide you with this information so that you can effectively evaluate this context, okay? So, what's important here?

[00:33:51]And I usually say that this map shows us a context of what you should observe here as a parameter to effectively assess whether or not you can register the ICMS credit on the transportation service linked to a non-taxable operation. So here I started by identifying situations, what the situation is, and whether it's allowed or not. Sale subject to taxation. So it's an operation that has normal CMS taxation, normal credit, exempt, but with express maintenance of the credit, for example, for farm produce. Since we have the opposite arrangement, I maintain the credit. It is a tax-exempt transaction, but I did not identify any express provision for maintaining the credit. I can't, I can't appropriate it, it's forbidden. Export.

[00:34:50]We have a non-incidence of CMS (a Brazilian sales tax), but we have an express provision here in article 68 of the CMS regulations and in the Federal Constitution itself, allowing the maintenance of the credit. Can I keep the credit?

[00:35:04]I have outgoing transactions with a reduced tax base, and this reduced tax base does not expressly provide for the full maintenance of the credit. So the freight credit will also be proportional. So, again, if my transaction has a 90% reduced tax base, my tax credit will have a 90% reduced tax base. So, I'm only going to claim 10% of the CMS credit on the FET. If I have an output transaction with a reduced tax base, but with the full credit maintained, then the output is taxed proportionally, but the provision allows for the full credit to be maintained, so effectively I will claim the full credit here, okay? Zero tax rate without the actual maintenance of the credit. Credit Vedad.

[00:35:59]Deferment. What exactly is a deferment, everyone? Deferment is a postponement of the requirement to collect the tax.

[00:36:05]In other words, that transaction is taxable, but I will not collect the tax at that time. I will collect the tax immediately. So it's a taxable transaction, but I collect that ICMS (Brazilian sales tax) at a later stage. Am I entitled to maintain my credit? Yes, because it is a taxable transaction. So this chart shows you a way in which you can evaluate the legislation in order to identify... Is it subject to taxation?

[00:36:32]Yes. So, full credit is not taxed.

[00:36:37]The question is: is there a plan to maintain the credit? He has. Can I claim a CMS credit on freight? There is no provision for maintaining the credit; I cannot claim the CS credit on the freight. So, folks, the provision that will effectively demonstrate whether or not the ICMS (Brazilian state sales tax) on this transportation service can be credited is the very provision that deals with non- taxation or partial taxation. If he anticipates maintaining the credit or waives the credit reversal, then I will have the option to record this CT with CMS credit.

[00:37:18]Otherwise, I'll have to reverse the transaction or register the shipping cost without crediting the CMS (Cost per Share) from the start. So, folks, to get to our final considerations in practice, how can you evaluate this in your daily work, in your offices, in your companies?

[00:37:39]So how can I assess this context? If the general rule applies, and my outgoing transaction is exempt and not taxed, then I am not entitled to a tax credit.

[00:37:51]This is the general procedure; I have no credit. As an exception, I have a non- taxable output, but I have here a specific express provision for maintaining the credit. In this case, it 's either maintaining the credit or waiving the credit reversal. So here we can link the ICMS credit to the freight in order to effectively register the appropriation and short fruit and grain products that are exempt from ICMS, right? Indeed, here we know that there is an explicit provision. So what's important here for you? For each situation where you are carrying out a non- taxable transaction and have a freight charge linked to that transaction, you will have to map all the relevant legislation and check if there is any provision to the contrary or not in order to effectively maintain the tax credit. Okay, everyone?

[00:38:45]I hope that these considerations will make your day-to-day work easier, allowing you to identify whether a transaction is taxable or not, and why it is or is not taxable, so that you can effectively assess whether or not to maintain or claim the ICMS credit on the FEAT. It was a pleasure being here with you. Here are my contact details, both on LinkedIn and Instagram. It's always a pleasure to be here with Net Fiscal, bringing you these insights, this knowledge, this information so that you can apply it in your daily lives, everyone. Big hug to you all and see you at the next live stream. Hey everyone, did you enjoy today's lesson? Before we wrap up, I want to remind you that applications for our MBA in tax reform and tax management are officially open.

[00:39:51]It's a 12-month comprehensive training program, with 390 hours of content, live classes, tutoring, certification recognized by the Brazilian Ministry of Education ( MEC), and it's 100% online. Everything you need to master the new tax system and position yourself as a leader in the market. And for this first group, we've prepared special conditions, a R$360 discount, and exclusive launch bonuses. If you want to know all the details and secure your spot, access the link in the comments and video description now. Until the next class.