Since the judgment of RE 593,849 by the STF (Theme 201), in terms of general repercussion, States and the Federal District have done everything possible to make it difficult for taxpayers to obtain a refund of ICMS collected through the Tax Substitution system (ICMS-ST), when the effective tax calculation basis is lower than the presumed one.
Worse than that. States began requiring ICMS-ST supplementation in cases where the presumed taxable event was lower than the actual value of the final sale, arguing that such collection would result from the application of the same principle that ensured refunds to taxpayers when the final sale value was lower than the value used as the basis for calculating ICMS-ST.
In São Paulo, for example, CAT Ordinance 42/2018 and the Opinion of the Tax Prosecutor’s Office 23, dated November 22, 2018, leave no doubt that São Paulo taxpayers should pay the ICMS-ST supplement when the actual taxable event is lower than the presumed one. And this was long before a rule appeared in the legislation mandating the payment of the supplement, which only occurred with the enactment of São Paulo Law 17,293/20, published on October 16, 2020, which added art. 66-H to Law No. 6,374/89.
It is a fact that, in a recent decision, the Court of Justice of the State of São Paulo maintained the obligation to collect the supplement from an important retail chain, without, however, completely exhausting the issue, as it did not address the lack of a Complementary Law that authorizes the supplementary charge.
Therefore, taxpayers must seek legal assistance to have any claim by the State Tax Authority to demand the supplementation of ICMS-ST rejected in cases where the actual taxable event is lower than the presumed one, which has strong legal arguments.
