The Decree of the State of Rio de Janeiro 49,219/2024, published on July 26, improves the rules for the compliance with ICMS ancillary obligations in transactions carried out by Consortia in activities related to exploitation and production of oil and natural gas.

Among the main provisions of the Decree, the following stand out:

  • Enrollment in the State Taxpayer Registry (CAD-ICMS)

The consortia must be formally enrolled in the CAD-ICMS, through the leading company, which will act as an agent for the consortium members. The CAD-ICMS enrollment does not vest legal personality to the consortium.

  • Obligations of the leading company

The leading company will be responsible for managing the transactions of the consortia and must uphold exclusive branches in the CAD-ICMS for each consortium that it operates.

  • Separate enrollments

For consortia that operate in different exploration blocks or production fields, it is necessary to have separate enrollments in order to ensure the traceability of transactions and the identification of the individual consortium share of each consortium member.

  • Documentation and tax registration

The leading company must record all acquisitions of:

  • inputs;
  • goods for the permanent asset;
  • materials for use and consumption; and
  • services subject to ICMS within the scope of the consortium in its tax books.

Each consortium must have its own bookkeeping.

  • Transfer of ICMS credit balances

The leading company must issue monthly electronic tax invoices (NF-e) to the consortium members, in the proportion of their consortium share, for the transfer of ICMS tax credits related to:

  • inputs, materials, services; and
  • goods for the permanent asset.

In cases where the consortium involves unitized reservoirs and/or shared facilities, the tax invoices must individualize also the ICMS credit balances corresponding to each production field that composes the unitized reservoir or that uses the shared facility.

  • Transfer of stocks from the block branch to the field branch

The leading company must also transfer stock from the block branch to the field branch at the time of the statement of commerciality.

  • Obligations of the consortium members

Consortium members with share in a production field, unitized reservoir or shared facility for oil and natural gas production (including the leading company) must:

  • apply for individualized state tax enrollment in the CAD-ICMS;
  • identify in its tax bookkeeping the portion of the disposed oil and natural gas production, in each tax period, based on its respective consortium share;
  • issue NF-e for each maritime disposal of oil or, each month, jointly, in the cases of pipeline disposal of oil and natural gas – in both cases, the tax law regarding the levy of ICMS must be observed;
  • issue NF-e by the last day of the month following the carrying out of oil and natural gas disposal transactions, for control purposes and without tax indication (this issuance must individualize, by series, the total disposed volume corresponding to each production field that composes the unitized reservoir or that uses the shared facility); and
  • observe the general rules for the registration of ICMS tax credits related to the permanent asset, including when transferred from the branch establishment of the leading company.
  • Confusion in the transfer of goods between consortium members

The Decree establishes the procedure applicable to transactions that may result in an ownership confusion relating to the goods of the consortium members.

  • Joint liability

The consortium members are jointly liable for the tax obligations arising from their consortium activities, which implies that all of them must be attentive to the compliance with such obligations.

The Decree 49,219/2024 revokes the Decree 26,064/2000 and enters into force on December 1, 2024.

Machado Meyer Advogados remains available to answer questions on the subject.