This means that when selling the goods with the percentage of ICMS already embedded by the industry, if the presumed value is greater than the effective at the time of sale, the retailer is entitled to return the amount paid in excess, without having to prove the transfer to the final consumer, who may end up paying more expensive, without being entitled to any refund
In recent weeks, taxpayers, especially retailers, have won a major victory before the First Section of the Superior Court of Justice (STJ), in the Special Appeals judgment no. 2,034,975/MG 2,035,550/MG and 2,034,977/MG, under the systematic of repetitive features (Theme no. 1.191).“O STJ accepted the thesis that, in the system of forward tax substitution, in which the substituted taxpayer resells the merchandise at a price lower than the assumed calculation basis for the collection of ICMS, the condition provided for in article 166 of the National Tax Code” is inapplicable, explains Amanda Nadal Gazzaniga, partner of ButtiniMoraes Advogados.
According to the tax official, in some states, such as Minas Gerais, taxpayers who requested the refund of ICMS-ST due to the difference between the value of the final transaction and the presumed value faced resistance from the Treasury Secretariats, which required proof of the acceptance of the financial burden.
The discussion on the inapplicability of art. 166 of the CTN became strongly relevant after the judgment by the STF, RE no. 593,849/MG, under the general repercussion system (Thema no. 201), in which it was established that “it is due to refund of the difference in the Tax on the Movement of Goods and Services (ICMS paid in excess in the forward tax substitution regime if the basis of effective calculation of the transaction is lower than the presumed”. “It turns out that, after the recognition of the right to restitution of ICMS-ST in this hypothesis, some States regulated the matter in order to restrict the return of the amount to taxpayers. Thus, in order to avoid economic losses, these same federation units began to require the proofs provided for in article 166 of CTN”, Amanda details.
The lawyer gives as an example the State of Minas Gerais, which, in § 1 of article 46 of Annex VII of the RICMS/MG (Decree no. 48.589/2023), determines that: “only the taxpayer shall be entitled to the refund referred to in the caput, who has not passed on the amount of the tax claimed in the price of the goods or, if he has done so, is expressly authorized to receive it by the person who supported it, in which case the supporting documents must be kept at the disposal of the Treasury.”
In general, the CTN's provision aims to prevent the taxpayer from requesting the refund of indirect tax, whose financial burden has been borne by another person (called “contributor de facto”), and an exception is allowed only if that citizen expressly authorizes the taxpayer entitled to receive these amounts.
The justification for restricting the right to restitution is that the taxpayer of law, when selling goods with the tax included in the price, had already been compensated or reimbursed. Thus, if the payment of the tax was considered improper, return it to the taxpayer of law would result in unjustified enrichment, because he would be reimbursed twice. “ that, for the application of article 166 of the CTN, the analysis of the economic repercussion must be made in each specific case, being necessary to distinguish between situations that, although they seem similar, can lead to different legal results”, highlights the lawyer of ButtiniMorae.
As is the case of the refund in relation to the forward tax substitution regime, in which the tax is collected in advance, before the actual occurrence of the generating event, that is, before the sale to the final consumer. In such a way that the payment of the tax is based on an estimate that may not be confirmed. Thus, if the presumed value is greater than the realized, 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 charge is borne exclusively by the tax substitute, it is to this that the right to refund the tax is actually due. In fact, the refund of ICMS-ST paid in excess aims to prevent the State from unduly withholding values that do not correspond to the actual amount of the transaction. The application of article 166 of the CTN in these cases would hinder the legitimate return of taxes collected the largest, unfairly benefiting the tax authorities 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 for the tax substitute (retailer) of the ICMS-ST corresponding to the difference between the assumed 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 (Them 1.191), confirmed the jurisprudence of the court itself, which had already understood that: “in the systematic tax substitution forward, when the goods are purchased, the taxpayer replaced in advance collects the tax according to the estimated calculation basis, so that in the specific case of resale for lower value, the taxpayer collects the tax he has no way of recovering the tribute he has already paid, resulting in the discount on the final price of the product of the trader's own profit margin, being inapplicable, in kind, the condition to the repetitive claim that is dealt with art. 166 of CTN” (AgRg in REsp 630.966/RS, Rapporteur Minister Gurgel de Faria, First Class, DJe 22/05/2018). In the same sense: AgInt in REsp no. 1.956.315/MG, Rapporteur Minister REGina Helena Costa, Class, Class First Class 2/222.[1]
“Therefore, the STJ correctly closed the matter by recognizing that it is not necessary to comply with Article 166 of the CTN in situations where the refund of amounts paid in ICMS is sought in the forward tax substitution regime, especially when the basis for effective calculation of the transaction is lower than presumed, since, as shown, the burden is assumed only by the replaced tax”, concludes Amanda.