In the 1960's years the State of ESPÍRITO SANTO had its economy totally based at a single monoculture, the Coffee, cultivated without technique, without machinery and without the slightest concern for quality.

It became necessary, therefore, to seek for a new base of economic development for the State, even because the entrance of new world-wide producers of coffee and the demand for quality was a hard reality that threatened the very survival of the Espírito Santo.

In this scene, the Governor CHRISTIANO DAYS LOPES FILHO surrounded itself by several "experts", with emphasis for the economist JOSÉ TEÓFILO DE OLIVEIRA, and commissioned them to a special mission: to create a POLICY FOR FOREIGN TRADE PROMOTION.

Then FUNDAP was created - Development Fund of Port Activities, aiming to attract to the ESPÍRITO SANTO, the imports and exports carried through until then mostly in the port of Santos, and with this, generate wealth circulation, that, obviously would facilitate the creation of new jobs and would specialize the local workforce in the "expertise" of foreign trade.

Indeed, the FUNDAP was never a FISCAL incentive, therefore it does not offers presumed credit and nor reduces the taxable income of the ICMS. Note that the fixing of the ICMS for IMPORTATION in 12% is a perfectly legal act, though foreseen by current rules settled by the Federal SENATE concerning to the limits of aliquots for that tribute.

Moreover, the FUNDAP is not a FINANCIAL incentive, precisely, since it does not have financing for the payment of ICMS IMPORTATION.
The FUNDAP is, as stated in the opening, a Fund that makes viable a POLITIC FOR PROMOTION OF ATTRACTION OF FOREIGN TRADE BUSINESS TO ESPÍRITO SANTO and this is clearly shown in the results gotten throughout all these years of its validity.
If in 1970, when the FUNDAP was created, the importations and exportations carried through here were few, today the CUSTOMS OF THE PORT OF VITÓRIA is the 2nd bigger in activity.

Today, the STATE OF ESPÍRITO SANTO is the Brazilian great center of foreign trade!
In 1993, the Government of the STATE OF SAO PAULO even dispatched an administrative decree prohibiting that local companies were benefited, directly or indirectly, from tax credits deriving from importations carried through under FUNDAP.

The reaction of the STATE OF ESPÍRITO SANTO was immediate, requiring to the FEDERAL SUPREME COURT a SECURITY ORDER that suspended the effects of such act. Distributed to then Minister SEPÚLVEDA PERTENCE, the THRESHOULD was granted and is still available, since until today the merit was not judged.
In the beginning, is recognized, some businessmen had misused the rules and, doing this, created embarrassment about the seriousness of the operations carried through under the rules of FUNDAP.

However, from 2001 with a joint action of entrepreneurs, Federal Revenue and the State Government, the FUNDAP surpassed some alterations that have made it legally secure, mainly by requiring that the CUSTOMS CLEARANCE OF THE MERCHANDISES OCCURS IN THE STATE OF THE ESPIRITO SANTO.

Operationally, the FUNDAP can be summarized as follows:
1. the IMPORTER must have HEADQUARTER in the STATE OF THE ESPÍRITO SANTO and must be empowered with the BANDES to operate under the rules of FUNDAP;
2. CUSTOMS CLEARANCE of the goods imported under the rules of FUNDAP must necessarily occur in the STATE OF ESPÍRITO SANTO;
3. The ICMS befell in the importation is DIFFERED FOR the 26™ day of the following month to that one where to occur the exit from the IMPORTER;
4. The ICMS of the EXIT FROM THE IMPORTER is appraised by the aliquot of 12% and once paid, the ICMS IMPORTATION is considered paid for all legal purposes;
5. The IMPORTER, proving have held an importation under the rules of FUNDAP and collected the referring ICMS, become able to a financing corresponding to 8% of the transaction, from such amount is restrained a percentage of 7%, for use in projects for local development. To get such financing, the IMPORTER must fulfill to all the requirements of the Central Bank, including offering guarantee;

Some states have annotated credits of ICMS in operations where their taxpayers purchase goods imported under the rules of FUNDAP. However, both the Federal SUPREME COURT as the various Courts of Justice already decided by the illegality of such annotations because, if there is any "war tax", it occurs between the Federation units and can not cause harm to taxpayers, since they act in good faith and availing of current legal rules, despite of possibly questionable constitutionality.

Another issue that is generating questionings is the importation called – BY ACCOUNT AND ORDER, although there is not the slightest reason for any doubt. After all, by right of Art. 31 of Decree Law 37, from 1966, IMPORTER is the one that PROMOTE THE ENTRANCE OF FOREIGN GOODS IN THE BRAZILIAN TERRITORY and thus, is the ONLY LEGAL ADDRESSEE OF THE GOODS.

Being thus, the ICMS IMPORTATION fits to the Federate Unit where located the IMPORTER, whether it has held the importation by account and order of the third.

Doctrinizers as ROQUE CARRAZZA, SOARES DE MELLO and CHIESA are unanimous in defense of this premise, as the jurisprudence of the Supreme Court has been pacific in this direction (RE 299,079 / RJ, AC-MC-KO 1292 / MG).