This means that by selling the goods with the percentage of the ICMS already embedded by the industry, if the presumed value is greater than the actual value at the time of sale, the retailer is entitled to a refund of the excess amount paid, without having to prove the transfer to the final consumer, that may end up paying more dearly, without being entitled to any refund
In the last few weeks, the taxpayers, in particular retailers, obtained an important victory before the First Division of the High Court of Justice (STJ), in the trial of the Special Appeals n.º 2.034.975/MG 2.035.550/MG e 2.034.977/MG, under the systematic ofrepetitive resources(Item number 1.191).The STJ accepted the thesis that, in the systematics of forward tax substitution, where the substitute taxpayer resells the goods at a price lower than the base of calculation assumed for the collection of the ICMS, the condition laid down in Article 166 of the National Tax Code does not apply:, Amanda Nadal explains to Gazzaniga, Partner of ButtiniMoraes Lawyers
According to the taxpayer, in some States, as Minas Gerais, the taxpayers who argued for the refund of ICMS-ST due to the difference between the value of the final transaction and the presumed value faced resistance from the Secretariats of Finance, requiring proof of the acceptance of the financial burden
The discussion on the inapplicability of art.. 166 of the CTN became highly relevant after the STF trial, of RE No 593.849/MG, under the general impact system (item No 201), which established that:⁇ the difference in the Tax on the Movement of Goods and Services is due to be reimbursed – ICMS overpaid in the forward tax substitution scheme if the actual calculation basis of the transaction is lower than assumed ⁇It happens that, after the recognition of the right to the ICMS-ST refund in that case, Some states have regulated the matter to restrict the return of the amount to taxpayers..So, in order to avoid economic losses, these same units of the federation now require the proofs provided for in Article 166 of the CTN
The lawyer gives as an example the State of Minas Gerais, what, no § 1º do artigo 46 do Anexo VII do RICMS/MG (Decreto nº 48.589/2023), determines that: ⁇will only qualify for the refund referred to in the caput, the taxpayer who has not reimbursed the amount of the tax claimed in the price of the goods; or, In case you did., be expressly authorised to receive it by the person who bore it, in which case the supporting documents must be kept at the disposal of the tax authorities.”
In general terms, the CTN mechanism is intended to prevent the taxpayer from applying for a refund of the indirect tax, whose financial burden has been borne by another person (referred to as the "de facto taxpayer"), an exception is permitted only if that citizen expressly authorises the entitled taxpayer to receive those amounts
The justification for restricting the right to a refund is that the taxpayer of right, when selling goods with the tax included in the price, had already been compensated or reimbursed. In this way, if the payment of the tax is considered to be undue, returning it to the taxpayer would result in unjust enrichment, Because he'd be getting paid back twice.. Is it true that, for the application of Article 166 of the CTN, the analysis of the economic impact must be carried out in each specific case, It is necessary to distinguish between situations which, Even though they look alike, may lead to different legal outcomes, highlights the lawyer of ButtiniMoraes
As is the case with the refund in relation to the forward tax substitution scheme, in which the tax is collected in advance, before the actual occurrence of the generating event, this is, before sale to the final consumer. So the payment of the tax is based on an estimate that may not be confirmed.. Thus, if the assumed value is greater than the realized value, this justifies the return of the amount paid in excess, without the need to prove the transfer to the final consumer
It is observed, therefore, that the amount to be refunded is not passed on to the final consumer at any time, since the burden is borne exclusively by the substitute taxpayer, It's up to him., in fact, the right to a tax refund. Inclusive, the purpose of the reimbursement of the ICMS-ST overpaid is to prevent the State from unduly withholding amounts which do not correspond to the actual amount of the operation. The application of Article 166 of the CTN in such cases would make it difficult for the legitimate reimbursement of taxes collected by the largest, unfairly benefiting the taxpayer and not the taxpayer, by generating unjust enrichment for the State
Thus, There is no doubt about the inapplicability of Article. 166 of the CTN in the refund by the substitute taxpayer (retailer) of the ICMS-ST corresponding to the difference between the presumed calculation basis and the one actually practiced in the sales transactions to the final consumer
The thesis recently established by the First Section of the STJ (Topic No..191), confirmed the case-law of the Court itself, that I had already understood that:
Therefore, The Court of First Instance correctly concluded that it was not necessary to comply with the provisions of Article 166 of the CTN in situations where the refund of the largest amounts paid as ICMS in the forward tax substitution scheme was claimed., in particular when the actual basis of calculation of the operation is lower than assumed, since, as demonstrated, the burden is borne only by the substitute taxpayer;, Amanda concludes
