Restituição de ICMS pago a maior no regime de substituição tributária progressiva

Abstract

The right to restitution of the amount paid on the tax substitution system, if not realized the presumed taxable fact, is guaranteed by § 7 of Article 150 of the Constitution of 1988. The question that arises is whether there is the right to restitution in cases where the actual basis for calculation of the tax is lower than presumed. The prevailing understanding of the traditional tributary doctrine and the Superior Court of Justice has established in the sense that it is also due the restitution in this case. However, in 2002, the Supreme Court, in the judgment of the Direct Action of Unconstitutionality nº. 1851-4, crystallized the understanding in the sense that it is undue the restitution when the commercial operation becomes effective for lower value-based calculation previously established. This study aims to analyze the arguments involved in this controversy, to verify the possibility or impossibility of restitution of ICMS (Goods and Services Circulation Tax) paid on the higher on the tax substitution system.