Fawley Savannah

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SpaccaThis article aims to address the importance of legal security brought by Complementary Law 160/2017 to ICMS tax incentives for agroindustry, such as wine production in the states of Pernambuco and Bahia.

For many years, the productive sector, including agroindustry, suffered from a lack of legal certainty related to ICMS tax incentives granted, without the approval of Confaz [1] , which required the unanimous approval of the states, in light of what it prescribes. Complementary Law 24/75 [2] . There were decades of problems for the states and, especially, for taxpayers.

The requirement for unanimity to approve Pharmacies Email List centives has always seemed unreasonable to us, as it creates a kind of dictatorship of the minority , not to mention that the 1988 Constitution at no time authorized the requirement that votes or decisions be unanimous in order to have a legal norm approved. In our understanding, this rule was not accepted by the Constitution, although we recognize that the STF has already pointed out the unconstitutionality of tax incentives granted without the approval of Confaz [3] .

Well then. Fortunately, with the publication of Complementary Law 160/2017 [4] , tax incentives unilaterally granted by states could be preserved, including for agroindustry [5] , through the approval of Confaz Agreement 190/2017, published on 12/18 /2017. Through its 8th clause, the agreement prescribes that the tax incentives of states that republish their rules in the Official Gazette and deposit the information related to it in Confaz will be validated:



"Eighth clause. ICMS tax credits, constituted or not, arising from the tax benefits established by state or district legislation published until August 8, 2017, are remitted and amnestied, in disagreement with the provisions of paragraph “g” of item XII of § 2 of art. 155 of the Federal Constitution.


§ 1 The remission and amnesty provided for in the caput of this clause also apply to tax benefits:

I – judicially dismissed, as they do not comply with the provisions of paragraph “g” of item XII of § 2 of art. 155 of the Federal Constitution;

II – arising from, in the period from August 8, 2017 to the date of reinstitution, provided that reinstitution does not exceed December 28, 2018:

a) concession by the federated unit to a taxpayer located in its territory, based on a normative act in force on August 8, 2017, subject to its conditions and limits;

b) extension by the federated unit of a normative or concessional act;

c) modification by the federated unit of a normative or concessional act, to reduce its scope or amount”.

The approval of the aforementioned agreement took place in compliance with the rule set out in article 3 of Complementary Law 160 [6] , whose approval criteria meets the democratic values ​​set out in the Constitution.
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