The ministers of the 2nd Panel of the Superior Court of Justice (STJ) unanimously denied the appeal filed by the state of Rio Grande do Sul and allowed the taxpayer to credit the difference in ICMS overpaid under the forward tax substitution regime in a transaction in which the actual sales value was lower than the presumed tax base. The case is REsp 525625/RS.
Although unanimous, the decision had two distinct theses: that of the rapporteur, Minister Francisco Falcão, who admitted the application of article 166 of the National Tax Code (CTN) to the case, and that of Minister Assusete Magalhães, who dismissed the application of the provision and understood that article 10 of Law 87/96 applies. By 3 to 2, the winning thesis was that of Minister Assusete.
According to article 166 of the CTN, “the refund of taxes that involve, by their nature, the transfer of the respective financial burden will only be made to those who prove to have assumed said burden, or, in the case of having transferred it to a third party, to be expressly authorized by that third party to receive it”.
The device was used by the state of Rio Grande do Sul to question the taxpayer's right to credit. For the state, in order to be entitled to credit, the legal entity would have to prove that it assumed the burden or that it was authorized by the person who actually assumed the burden to request the refund.
However, the rapporteur applied to the case the understanding of Minister Og Fernandes in the judgment of Special Appeal (REsp) 1,844,911, that, if the taxable event occurred with a calculation basis lower than that assumed in the tax substitution regime, the direct imposition of the tax is assumed, making it unnecessary to prove who assumed the financial burden.
Justice Assusete Magalhães proposed a different reasoning. She suggested that the panel base the dismissal of the state's appeal on article 10 of law 87/96, which establishes that "the substituted taxpayer is guaranteed the right to a refund of the amount of tax paid by virtue of the tax substitution, corresponding to the presumed taxable event that did not occur." The justice's vote was supported by the majority of the panel.
General repercussion
The trial of the case was resumed on Tuesday (9/8) after a request for review by Minister Herman Benjamin. In the previous session, Assusete Magalhães argued, in her reasons for decision, that article 166 is included in a section of the CTN intended for undue payments, which is not the case in the present case. The judge also considered that crediting may occur based on article 150, paragraph seven, of the Constitution, as defined by the STF in Theme 201 of the general repercussion.
According to Supreme Court Theme 201, “the refund of the difference in ICMS paid in excess under the forward tax substitution regime is due if the effective tax base of the transaction is lower than the presumed one”.
In a 2004 trial, the 2nd Panel of the STJ granted the appeal filed by the state of Rio Grande do Sul to veto the crediting of ICMS, on the grounds that this would only be possible when the taxable event did not occur, and not when the presumed tax base was lower than the real value. At the request of the taxpayer, however, the case was suspended and has now been reanalyzed in light of the 2016 STF decision in RE 593,849, which resulted in Theme 201 of the general repercussion.