Pedro Rezek Andery
Lawyer at Marcos Martins Advogados
It has already been settled in the Courts, including by means of a Precedent, that ICMS is not levied on transactions involving the transfer of goods between establishments of the same taxpayer.
In order for the tax to be levied, it is necessary to transfer ownership of the goods, which is not the case in this transaction.
But this was not always the case. There was a time when the states demanded ICMS from the taxpayer, especially when it was a transfer between establishments located in different states, which is why many undue payments occurred.
After it was settled that ICMS was not levied, taxpayers who had unduly paid ICMS began to go to the courts in order to recover their tax debt.
However, most of the decisions were unfavorable, because in the judges’ view, article 166 of the National Tax Code only allows the tax to be refunded by the person who suffered the financial burden. For a better understanding, as ICMS is considered an indirect tax, its cost is passed on to the next person in the chain, who is entitled to claim the credit.
Recently, the Superior Court of Justice (STJ) ruled out the application of this article exclusively in this case, because in the transfer of goods between establishments of the same owner, the taxpayer continues to hold physical and legal ownership, and there is no need to talk about transferring the financial burden to third parties.
Therefore, if the taxpayer has paid ICMS on transactions involving the transfer of goods between the same owner, it is possible to claim a refund, provided that the five-year period is respected.
Marcos Martins Advogados puts its tax team at your disposal to answer any questions you may have.
