Direito de restituição do ICMS-ST na hipótese de base de cálculo efetiva da operação inferior à presumida

• Autor(a) principal: Rosa, Matheus Belardinelli
• Data de Publicação: 2023
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/40173
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Substituição; ICMS; Restituição; Substitution; ICMS; Refund

Tax substitution is a collection technique imposed by the states, and it is available on some taxes, as is the case of ICMS. When faced with the progressive substitution modality, there is the possibility that the presumed tax base may be higher than the effective one, which would imply an overpaid tax amount. In this scenario, the majority opinion of the Superior Court of Justice and legal scholars is that in cases in which the presumed tax base is higher than the tax base actually used, the substituted taxpayer is entitled to obtain a refund of the overpaid ICMS-ST, and the obstacles provided for in article 166 of the National Tax Code do not apply in such cases. However, despite this subjective right of the substituted taxpayers, the states have been making the refund of the overpaid tax more difficult, by conditioning it to specific requirements, in a way that goes against the "immediate and preferential" refund ordered by the Federal Constitution. In view of this factual reality, at the end of the study it was possible to present alternative methods that taxpayers may follow to recover the amounts unduly paid as ICMS-ST, involving administrative and judicial measures