São Paulo followed the path adopted by other States to simplify ICMS-ST (tax substitution). It implemented the Optional Taxation Regime (ROT) so as not to have to return to retailers what industries paid in excess tax.
In return, the state government will not be able to charge the taxpayer should it have collected a lesser amount. The rules for adhesion were published on May 1, by means of CAT Ordinance No. 25. The article is from Valor Econômico.
The newspaper highlights that the problem arose after the Federal Supreme Court (STF) held that the States have the obligation to refund the ICMS-ST paid in excess — in the case of a product being sold for an amount lower than that established. The trial, under general repercussion (RE 593849), was held in 2016.
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After the trial, with the justification of simplifying tax substitution, the National Council for Fiscal Policy (Confaz) instituted the Optional Taxation Regime, in July 2019, by means of ICMS Agreement No. 67. Some States such as Minas Gerais, Paraná, Rio Grande do Sul, Mato Grosso, and Mato Grosso do Sul, and now São Paulo, have already implemented this system.
In São Paulo, the new regime is provided for in Decree No. 65,593, published on March 26. And its regulation, in CAT Ordinance No. 25. The rule establishes that the period of permanence in the regime is at least one year. It was also determined that the Treasury may, ex officio, disqualify a taxpayer from the ROT, provided it does so on stated grounds. But it does not clarify what those grounds would be. Finally, the ordinance clarifies that the segments authorized for adhesion will still be announced.
Last year, the State collected R$ 25 billion through tax substitution — under this regime the tax is collected by the manufacturer or importer for the entire production chain, with an estimate of the product’s price. Retailers paid around R$ 2.3 billion in supplement, according to data from the São Paulo Treasury and Planning Secretariat (Sefaz-SP).
Source: Valor Econômico
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