On August 9, a decision was issued by the 2nd Public Finance Division of the Court of Justice of the State of São Paulo, recognizing the right of a company in the distribution sector to be reimbursed for the ICMS-ST paid in excess, with the due updating of the amounts recovered by the Selic Rate, from the moment of the overpayment.

This is an important precedent in a process sponsored by Mazzucco & Mello Advogados and which should generate a significant financial impact on the taxpayer.

It is worth remembering that the São Paulo Tax Authority has been stating that “There is no legal provision (in law, decree and ordinances) for the application of interest or monetary correction in relation to the reimbursement of substitution tax, resulting from the sale or transfer of products acquired with ICMS retained by substitution tax destined for other States.” (Response to Inquiry No. 17,885/2018). This understanding, however, violates art. 150, § 7, of the Federal Constitution and art. 10, § 1, of LC No. 87/96.

Companies that have ICMS-ST amounts to be reimbursed are advised to seek the Judiciary to ensure their right to update said amounts by the Selic or, alternatively, by the IPCA.