This means that when selling goods with the ICMS percentage already included by the industry, if the presumed value is higher than the actual value at the time of sale, the retailer has the right to a refund of the amount overpaid, without needing to prove the pass-through to the final consumer, who may end up paying more without any refund.
In recent weeks, taxpayers, especially retailers, achieved an important victory before the First Section of the Superior Court of Justice (STJ) in the judgment of Special Appeals nos. 2,034,975/MG, 2,035,550/MG, and 2,034,977/MG, under the system of repetitive appeals (Theme No. 1,191). “The STJ accepted the thesis that, under the forward tax substitution system, where the substitute taxpayer resells the goods at a lower price than the presumed tax base for the ICMS collection, the condition provided for in Article 166 of the National Tax Code is inapplicable,” explains Amanda Nadal Gazzaniga, a partner at ButtiniMoraes Advogados.
According to the tax attorney, in some states like Minas Gerais, taxpayers seeking the refund of ICMS-ST due to the difference between the final transaction value and the presumed value faced resistance from the Treasury Departments, which demanded proof of the financial burden acceptance.
The discussion on the inapplicability of art. 166 of the CTN became highly relevant after the judgment by the STF, in RE No. 593,849/MG, under the general repercussion system (Theme No. 201), in which it was established that “the refund of the difference of the Tax on Circulation of Goods and Services – ICMS paid in excess in the tax substitution regime is due if the actual calculation base of the operation is less than the presumed one”. After the recognition of the right to the refund of ICMS-ST in this scenario, some states regulated the matter in a way that restricted the return of the amount to taxpayers. In order to avoid economic losses, these same federal units began to demand the evidence provided for in article 166 of the CTN”, details Amanda.
The lawyer gives the example of the state of Minas Gerais, which, in paragraph 1 of article 46 of Annex VII of RICMS/MG (Decree No. 48,589/2023), determines that: “the taxpayer is only entitled to the refund referred to in the heading if the taxpayer has not passed on the amount of the tax claimed in the price of the goods or, in case it has, is expressly authorized to receive it by whoever bore it, in which case the supporting documents must be made available to the tax authorities.”
In general, the provision of the CTN aims to prevent the rightful taxpayer from seeking the refund of indirect tax, the financial burden of which was borne by another person (referred to as the “actual taxpayer”), with an exception only allowed if this citizen expressly authorizes the rightful taxpayer to receive these amounts.
The justification for restricting the right to restitution is that the rightful taxpayer, when selling goods with the tax included in the price, had already been compensated or reimbursed. Therefore, if the tax payment were considered undue, returning it to the rightful taxpayer would result in unjust enrichment, as they would be reimbursed twice. “The application of Article 166 of the CTN requires an analysis of the economic repercussion in each specific case, distinguishing between seemingly similar situations that may lead to different legal outcomes,” highlights the lawyer from ButtiniMoraes.
As is the case with restitution regarding the forward substitution tax regime, where the tax is collected in advance, before the actual occurrence of the taxable event, that is, before the sale to the final consumer. Therefore, the tax payment is based on an estimate that may not materialize. Thus, if the presumed value is higher than the actual value, this justifies the return of the overpaid amount without the need to prove the pass-through to the final consumer.
It is observed, therefore, that the refunded amount is never passed on to the final consumer at any point, as the burden is solely borne by the tax substitute, who is the one entitled to the refund of the tax. In fact, the refund of excess ICMS-ST aims to prevent the State from unduly retaining values that do not correspond to the actual transaction amount. The application of Article 166 of the CTN in these cases would hinder the legitimate return of overpaid taxes, unjustly benefiting the treasury and not the taxpayer, resulting in unjust enrichment for the State.
Thus, there are no doubts about the inapplicability of art. 166 of the CTN in the refund by the tax substituted (retailer) of the corresponding ICMS-ST difference between the presumed and effectively practiced tax base in sales to the end consumer.
The recent thesis established by the First Section of the STJ (Theme No. 1,191), confirmed the jurisprudence of the court itself, which had already understood that: “in the forward tax substitution system, when acquiring the merchandise, the taxpayer who has been substituted pays the tax in advance according to the estimated tax base, so that, in the specific case of resale for a lower value, they cannot recover the tax they have already paid, with the discount in the final product price stemming from the merchant’s own profit margin, making it inapplicable, in this case, the conditions for the repetitive claim referred to in art. 166 of the CTN” (AgRg in REsp 630,966 / RS, Minister Gurgel de Faria’s rapporteur, First Panel, DJe 22/05/2018). In the same direction: AgInt in REsp no. 1,956,315 / MG, rapporteur Minister Regina Helena Costa, First Panel, DJe of 17/2/2022.[1]
“Therefore, the STJ correctly concluded the issue by recognizing that it is not necessary to comply with what is stipulated in article 166 of the CTN in situations where the refund of amounts paid in excess of ICMS in the forward tax substitution regime is requested, especially when the effective tax base of the operation is lower than presumed, since, as demonstrated, the burden is assumed only by the tax substituted,” Amanda concludes.
