The 1st Panel of the Superior Court of Justice upheld the decision in favor of the retail sector taxpayer, in the sense of excluding unconditional discounts from the ICMS-ST calculation basis.
It’s worth remembering that unconditional discounts are those granted without any conditions or consideration from the other party. According to the Superior Court of Justice (STJ), to be eligible for this exclusion, the taxpayer must demonstrate that they passed on the discounts granted to the end consumer upon the purchase of goods subject to the substitution tax regime.
The STJ’s understanding is in line with the STF’s jurisprudence, when judging Theme 201, however, it is essential that the taxpayer proves that he passed on the unconditional discounts in the price of the goods, because, otherwise, the State Tax Authority may draw up a notice of infraction to demand the portion of the ICMS-ST that was not collected.
