STATE OF SÃO PAULO – REIMBURSEMENT OF THE VAT (“ICMS”) PAYMENT OVERPAID IN TAX SUBSTITUTION – REFUSAL – JUDICIAL PRECEDENTS
Although the Federal Supreme Court (“Supremo Tribunal Federal ” ) has decided since 2016 that taxpayers have the right to obtain reimbursement of the VAT (“ICMS”) tax overpaid in the tax substitution regime, the State of São Paulo has denied taxpayers reimbursement for amounts overpaid under the pretext that the refund of the tax in these cases only applies to the hypothesis of establishing the basis of calculation by competent authority, according to the communication “CAT No. 06/2018”.
However, this position of the State of São Paulo violates the decision of the Federal Supreme Court (“Supremo Tribunal Federal”) that considers “due to the restitution of the difference of the VAT (“ICMS”) overpaid in the regime of forward tax substitution if the actual basis of calculation of the operation is less than presumed “.
The refusal of the restitution by the State of São Paulo has been causing the taxpayers to access the State Court of Justice (“Tribunal de Justiça Estadual), which has recognized the right of the taxpayer to refund the greater difference overpaid from said tax.