Pedro Rezek Andery Altran
Lawyer at Marcos Martins Advogados
In certain interstate transactions, the state of São Paulo requires taxpayers to pay ICMS in advance, even when there is no agreement regulating tax substitution.
Due to the fact that the goods have not yet circulated, this requirement creates a fictitious taxable event, and this is where the problem arises, as the Federal Constitution states that in these cases the regulation must be made by law.
However, the state of São Paulo imposes this requirement by decree, as it believes that this is merely a change in the due date and not a change in the taxable event.
This issue reached the Supreme Court, where the Justices held that regulation by decree is unconstitutional, so that the requirement made by the State of São Paulo should not prevail.
The case dealt with the specific situation of Rio Grande do Sul, but the decision also applies to the state of São Paulo, as it joined as amicus curiae.
This ruling is extremely important for taxpayers, as it opens up the possibility of claiming back what has been unduly paid over the last five years.
The Marcos Martins law firm puts its tax team at your disposal to answer any questions you may have on the subject.
