The Federal Supreme Court has decided that the incidence of ICMS on importation operations can only be considered constitutional when established by later state legislation to Constitutional Amendment No 33/2001, which constituted the incidence of ICMS on the import of goods, Regardless of the activity branch exercised by the company or the importing individual, and to Complementary Law No. 114/2002, which established general standards on this new hypothesis of incidence of tax.

The decision was delivered in the Judgment of Special Resources nº 474.267 / RS and 439.796 / PR.

Such an understanding of the Supreme Court reveals the unconstitutionality of state laws preceding to that constitutional amendment, making it due to the taxpayer, for the appropriate judicial routes, the tax refund paid in an improperly.