This means that when selling goods with the ICMS percentage already included by the industry, if the presumed value is greater than the actual value at the time of sale, the retailer has the right to a refund of the amount paid in excess, without needing to prove the transfer to the end consumer, who may end up paying more, without being entitled to 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 No.º 2,034,975/MG 2,035,550/MG and 2,034,977/MG, under the systematic ofrepetitive resources(Topic No. 1.191)."The STJ accepted the thesis that, in the system of forward tax substitution, where the substituted taxpayer resells the goods at a price lower than the presumed calculation basis for ICMS payment, the condition provided in Article 166 of the National Tax Code is inapplicable," explains Amanda Nadal Gazzaniga, partner at ButtiniMoraes Advogados.
According to the tax specialist, in some states, such as Minas Gerais, taxpayers who claimed the refund of ICMS-ST due to the difference between the value of the final transaction and the presumed value faced resistance from the Finance Departments, which demanded proof of acceptance of the financial charge.
The discussion on the inapplicability of art. 166 of the CTN became highly relevant after the STF's judgment of RE No. 593,849/MG, under the general repercussion system (Theme No. 201), in which it was established that“the refund of the difference in the Tax on Circulation of Goods and Services – ICMS paid in excess under the forward tax substitution regime is due if the effective calculation basis of the transaction is lower than the presumed one”."It happens that, after the recognition of the right to ICMS-ST restitution in the aforementioned case, some states regulated the matter in a way that restricted the refund of the amount to taxpayers. Thus, in order to avoid economic losses, these same federal units began to require the proof provided for in article 166 of the CTN," explains Amanda.
The lawyer gives as an example the State of Minas Gerais, which, in § 1 of article 46 of Annex VII of RICMS/MG (Decree No. 48,589/2023), determines that: “Only the taxpayer who has not transferred the amount of tax claimed in the price of the goods, or, in the case of having done so, is expressly authorized to receive it from the party who bore it, shall be entitled to the refund referred to in the heading, and the supporting documents must be kept available for the Tax Authorities.
In general terms, the CTN provision aims to prevent the taxpayer from requesting the refund of indirect taxes, the financial burden of which has been borne by another person (called the “de facto taxpayer”), with an exception only being permitted if this citizen expressly authorizes the taxpayer to receive these amounts.
The justification for restricting the right to restitution is that the legal taxpayer, 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 were considered undue, returning it to the rightful taxpayer would result in unjust enrichment, as they would be reimbursed twice. "Therefore, for the application of Article 166 of the CTN, the analysis of the economic impact must be conducted on a case-by-case basis, distinguishing between situations that, despite appearing similar, may lead to different legal outcomes," emphasizes the lawyer from ButtiniMoraes.
As in the case of refunds concerning the forward tax substitution regime, where the tax is paid in advance, before the actual occurrence of the taxable event, that is, before the sale to the final consumer. So that the tax payment is based on an estimate that may not be confirmed. Thus, if the presumed amount is greater than the actual amount, this justifies the refund of the excess amount paid, without the need to prove the transfer to the final consumer.
It is therefore observed that the amount to be refunded is not passed on to the final consumer at any point, since the charge is exclusively borne by the tax substitute, and it is they who truly have the right to the tax refund. Furthermore, the refund of the ICMS-ST paid in excess aims to prevent the State from improperly withholding amounts that do not correspond to the actual value of the transaction. The application of Article 166 of the CTN in these cases would hinder the legitimate refund of overpaid taxes, unjustly benefiting the tax authorities and not the taxpayer, by causing unjust enrichment for the State.
Therefore, there is no doubt about the inapplicability of art. 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 that actually practiced in sales transactions to the final consumer.
The thesis recently established by the First Section of the STJ (Theme No. 1,191) confirmed the court's own case law, which had already understood that:“in the forward tax substitution system, when purchasing the goods, the taxpayer replaced in advance pays the tax according to the estimated tax base, so that, in the specific case of resale for a lower value,he has no way of recovering the tax he has already paid, with the discount applied to the final price of the product from the merchant's own profit margin, making the condition in the repetitive claim provided for in art. 166 of the CTN inapplicable in this case" (AgRg in REsp 630,966/RS, Rapporteur Minister Gurgel de Faria, First Panel, DJe 05/22/2018). In the same sense: AgInt in the 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 matter by recognizing that it is not necessary to observe the provisions of article 166 of the CTN in situations where the refund of amounts paid in excess as ICMS is sought under the forward tax substitution regime, especially when the effective calculation basis of the operation is lower than the presumed one, since, as demonstrated, the burden is assumed only by the substitute taxpayer”, concludes Amanda.
