By Mariana Martins and Gustavo Paulucci Teixeira

The Special Body of the Court of Justice of the State of São Paulo (TJ/SP), in a recent judgment, reached a consensus that companies from São Paulo are entitled to reimbursement of ICMS-ST amounts paid in excess (i) due to the discrepancy between the presumed calculation basis for advance payment of the tax and the price actually adopted for the sale of products to the end consumer or (ii) due to the non-effectiveness of the presumed taxable event that gave rise to advance payment, even in the period prior to October 19, 2016 – the cut-off date established by the STF in the judgment of RE No. 593,849/MG, affected by the general repercussion system.

The judges understood that the modulation of the effects of the STF decision does not apply to taxpayers from São Paulo, since, at the time of the judgment, the São Paulo ICMS Law already allowed reimbursement under the tax substitution regime.

Furthermore, the fact that the section that allowed the reimbursement of ICMS-ST in São Paulo legislation was declared constitutional by the Supreme Court, in the same session in which they judged the aforementioned Extraordinary Appeal (ADI 2777/SP) was considered.

This important precedent, in addition to removing the time limitation imposed by CAT Communiqué No. 14 of 12/12/2018 for reimbursement of ICMS-ST (as of 10/19/2016, in line with the position established by the STF), opens the way for taxpayers who had no lawsuits filed at the time of the STF judgment to reimburse amounts paid in excess in the five years prior to the date of filing of the legal measure, without the restriction established by the Supreme Court and adopted by SEFAZ/SP.

Considering that, as stated, the current understanding of SEFAZ/SP is based on the obstacle established by the STF, in the sense of granting only the reimbursement requests made to cover amounts paid after 10/19/2016, the taxpayer from São Paulo who aims for reimbursement for a period prior to October 2016 must file a legal action to apply the precedent established by the Special Body of the TJ/SP.

The Mazzucco & Mello Advogados tax team is available to provide any clarification on this topic.