In a recent ruling, the STJ (Superior Court of Justice) ruled that the substituted taxpayer who resells goods for a price lower than that which served as the basis for calculation of the ICMS-ST will be entitled to a refund of the tax that was overpaid, with the condition set out in art. 166 of the CTN (National Tax Code) being inapplicable to the case.
The controversy now decided through Repetitive Theme 1,191 ensures taxpayers the right to reimbursement of overpaid tax, under the argument that the condition provided for in art. 166 of the CTN was inapplicable, given that in the specific case of resale for a value lower than the presumed value, the replaced taxpayer has no way to recover the tax already paid, resulting in the discount on the final price of the product from the merchant’s own profit margin.
The argument was also accepted that, despite the ICMS-ST being due when the transaction was carried out in the previous stage, the sale at a price lower than that which served as the basis for the substitution in the following stage represents a supervening fact that gives rise to the taxpayer’s right to mere reimbursement, and not to the recovery of undue payment.
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