Brazil: SP Revoga Apropriação Acelerada de Créditos ICMS: Portaria SRE 45/25 e Impactos (2025)

The state of São Paulo published, on August 19, 2025, two regulations that significantly change the rules for the appropriation of ICMS credits: Decree No. 69,808/2025 and Ordinance SRE 45/2025. These changes are a response to Operation Ícaro, which investigates tax fraud in the state.

Context: Why Did SP Change the Rules?

According to Sefaz-SP, the changes aim to “reinforce control and improve processes to increase security and compliance in the appropriation of ICMS credits”.

Motivation: Operation Ícaro identified signs of fraud in ICMS-ST reimbursement requests, leading the São Paulo government to tighten the rules.

What Changed with Decree 69,808/2025

Decree No. 69,808/2025 (DOE 08/19/2025) revoked Decree No. 67,853/2023, eliminating the simplified procedures for the appropriation of accumulated ICMS credits.

Before (until 08/18/2025)

• ✅ Simplified appropriation for A+, A, and B companies under the Nos Conformes Program
• ✅ No prior inspection required by Sefaz-SP
• ✅ 100% digital process via e-CredAc system
• ✅ Average timeframe: 15-30 days
• ✅ Free transfer to third parties

Now (from 08/19/2025)

• ❌ Appropriation ONLY with mandatory prior inspection
• ❌ OR through a special fast track regime (criteria not disclosed)
• ⏱️ Estimated timeframe: 12-24 months
• ❌ Restricted transfer (only to supplier or own establishment)

Ordinance SRE 45/2025: Changes in ICMS-ST

Ordinance SRE 45/2025 amended Ordinance CAT 42/2018, which deals with the reimbursement of ICMS retained by tax substitution.

Article 20, Item II – Credit Transfer

BEFORE: Transfer to any establishment located in SP, provided it is a tax substitute with active registration status.

NOW: Transfer ONLY to:

• ✅ Tax substitute supplier registered in SP
• ✅ Another establishment of the same owner located in SP
• ❌ PROHIBITED transfer to non-supplier third parties

Article 20, Item IV – Debt Settlement

BEFORE: Possible to settle third-party tax debts

NOW: Settlement ONLY of:

• ✅ Own debts
• ✅ Debts of another establishment of the same owner
• ❌ PROHIBITED settlement of third-party debts

Source: Martinelli Advogados

Real Financial Impact on Companies

Practical example: São Paulo industry with R$ 2 million in accumulated ICMS credits

Financial cost calculation:

• Before: R$ 2 million × 1.5% × 1 month = R$ 30,000
• Now: R$ 2 million × 1.5% × 18 months = R$ 540,000
• Difference: R$ 510,000 additional cost

Most Affected Sectors

1. Retail: High volume of ICMS-ST in products like beverages, fuels, cosmetics
2. Wholesale: Operations with multiple substitute suppliers
3. Industry: Accumulated credits from export or rate differential
4. Distributors: Frequent need for credit transfers

Operation Ícaro: The Reason for the Changes

The changes are a response to Operation Ícaro, launched by the State Revenue to investigate fraud in ICMS-ST reimbursement requests.

Sefaz-SP’s Objective: Strengthen security, transparency, and compliance in ICMS credit procedures.

Read more: Sefaz-SP launches operation to inspect reimbursement credits

How Your Company Should Act NOW

Urgent Checklist (Next 30 Days)

• ☐ Map ALL accumulated ICMS credits (total value, origin, term)
• ☐ Identify ICMS-ST credits to reimburse (by supplier)
• ☐ Check possibility of transfer to supplier (if it is a tax substitute)
• ☐ Analyze own debts for compensation (ICMS, fines, interest)
• ☐ Consult a lawyer about special fast track regime (requirements)
• ☐ Evaluate legal action challenging the restrictions (costs vs benefits)
• ☐ Document EVERYTHING (evidence for potential litigation)
• ☐ Review tax planning (avoid future accumulation)

Strategic Actions

1. Negotiate with suppliers: Transfer credits to those who are tax substitutes
2. Anticipate compensations: Use credits on own debts before rules change again
3. Request special regime: File a fast track request with Sefaz-SP
4. Evaluate litigation: Legal action can suspend the effects of the restrictions

Special Fast Track Regime: A Viable Alternative?

Companies can request a special regime for accelerated appropriation, but:

• ❌ Criteria are not clear (Sefaz-SP has not disclosed requirements)
• ⏱️ Case-by-case analysis by Sefaz-SP (no defined timeframe)
• ❌ No guarantee of approval
• ⏱️ Process may take months
• 💰 May require guarantees (insurance, bank guarantee)

Recommendation: File a request even without certainty of approval, as it demonstrates good faith and may speed up the process.

Legal Analysis: Possible Illegalities

Experts point out possible flaws in the regulations:

1. Violation of the Right to Credit

ICMS-ST collected in excess must be refunded to the taxpayer (STF decision). Restricting appropriation can be interpreted as an undue limitation on the constitutional right to credit.

2. Principle of Tax Legality

Limitations on the use of tax credits must be provided for in formal law, not just in decrees or ordinances (hierarchy of norms).

3. Legal Certainty

Abrupt revocation without a transition period affects the legitimate expectations of companies that organized operations based on previous rules.

4. Misuse of Purpose

The Nos Conformes Program (LC 1,320/2018) was created to encourage compliance. Revoking benefits contradicts the spirit of the complementary law.

Complete FAQ – 10 Most Common Questions

1. Are the changes retroactive?

No. Appropriations and transfers made until 08/18/2025 remain valid. The rule applies only to requests filed after 08/19/2025.

2. Can I challenge it in court?

Yes. Experts point to possible violation of the right to credit and the principle of legality. Legal action can suspend the effects of the restrictions.

3. Is the Nos Conformes Program over?

No. The program continues to exist (LC 1,320/2018 remains in force), but it lost one of its main benefits: accelerated credit appropriation.

4. How long does it take now to appropriate credits?

Estimate: 12 to 24 months, depending on Sefaz-SP’s inspection queue and case complexity.

5. Can I transfer credits to my supplier?

Yes, if they are a tax substitute registered in São Paulo. You can no longer transfer to any third party.

6. Are credits accumulated before August/2025 lost?

No. You can appropriate them, but through the traditional process (with prior tax analysis), which takes longer.

7. Is it worth staying in Nos Conformes?

Yes. There are still other benefits: less inspection, priority in service, possibility of special regime. But the main attraction was lost.

8. Can I use credits to pay debts of another group company?

Only if it is another establishment of the same owner (same root CNPJ). You can no longer use it for different companies, even if from the same economic group.

9. What to do with already accumulated credits?

Options:

1. Wait for tax analysis (12-24 months)
2. Transfer to substitute supplier
3. Compensate with own debts
4. Request special fast track regime
5. File a lawsuit

10. Are there any forecasts for further changes?

No official information. It is recommended to monitor the Sefaz-SP website and follow publications in the State Official Gazette.

Verified Official Sources

• Decree No. 69,808/2025 – DOE 08/19/2025
• Ordinance SRE 45/2025 – DOE 08/19/2025
• Decree No. 67,853/2023 – Revoked
• Ordinance CAT 42/2018 – Amended
• Complementary Law 1,320/2018 – Nos Conformes Program
• RICMS/SP – Decree No. 45,490/2000
• Sefaz-SP Portal – Official news

| Information verified from official sources and analyses by specialized firms

Need help adapting your company to the new rules? Our tax consultancy team can assist in mapping credits, analyzing the feasibility of legal action, and requesting a special regime. Contact us.

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