Unanimously, the ministers of the 1st Section of the Superior Court of Justice (STJ) followed the understanding of the Federal Supreme Court (STF) and defined that the taxpayer is entitled to the ICMS paid in excess in the forward tax substitution when the effective tax base of the transaction is confirmed to be lower than that presumed at the time of calculating the tax. The decision was made in a retraction judgment.
In the specific case (AR 3147/GO), in a trial concluded in 2010, the STJ ruled in favor of the state of Goiás by defining that the taxpayer would have the right to refund ICMS in the “forward” tax substitution only in the event of the presumed taxable event not occurring, but not when the sale, in the next stage, occurred at a lower price than initially predicted.
The taxpayer, however, argued that the STF, in the judgment of Theme 201/STF, in 2016, established the thesis that “the refund of the difference of 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”.
The STJ accepted the taxpayer's argument on Thursday (10/3).