ICMS and Ship-to-ship Operations in Exclusive Economic Zone

Abstract

In this article, we start from a hypothetical situation concerning ship-to-ship operation and subsequent export. Herein, the carrier goes to the place of exploitation, in an exclusive economic zone, and transports the cargo to the place where the ship-to-ship operation will be carried out (also in an exclusive economic zone); thereon, the cargo goes to its final destination in a foreign country. Considering this, we examine if there is an incidence of the Brazilian ICMS tax on the transport services in question. To do so, we examine the definition of “international transport” contained in treaties incorporated by the Brazilian legislation; ICMS’ central elements about transport services; how the constitutional and legal exoneration of exports relates to transport services; and the legal-constitutional nature of the exclusive economic zone. All these tasks are performed according to an approach that privileges normative texts, rational argumentation and critical-descriptive appraisal of Brazilian superior courts jurisprudence.