O complemento do ICMS da substituição tributária

O complemento do ICMS da substituição tributária

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STF decidiu que os Estados e o Distrito Federal devem restituir ao contribuinte o valor do ICMS retido a maior no regime de substituição tributária, mas e quanto a obrigação do contribuinte pagar complemento de ICMS

O Supremo Tribunal Federal decidiu que os Estados e o Distrito Federal devem restituir ao contribuinte o valor do ICMS retido a maior no regime de substituição tributária.Para contextualizar o leitor, a lei atribui a determinadas pessoas jurídicas a responsabilidade de reter e pagar, além do ICMS sobre as suas próprias operações, o ICMS correspondente às operações seguintes até o consumidor final (ICMS-ST).

Estas pessoas jurídicas são chamadas de sujeitos passivos por substituição ou substitutos tributários. Os clientes do contribuinte substituto tributário que realizarão operações subsequentes, e portanto também contribuintes, são chamados de contribuintes substituídos.

Como não se pode saber quais serão os valores praticados nas operações futuras pelos contribuintes substituídos, a lei presume que o valor destas operações (base de cálculo do ICMS) será o valor médio aplicado pelo mercado, o preço público sugerido pelo fabricante ou preços tabelados já definidos pelo poder público.

Este índice, chamado Margem de Valor Adicionado (MVA), será usado pelo contribuinte substituto para calcular e recolher antecipadamente o ICMS-ST sobre estas operações futuras.

A questão enfrentada pelo STF consiste na definição de saber se o Estado deve devolver o ICMS-ST antecipadamente retido e recolhido com base em um valor presumido, quando as operações futuras ocorrerem por valores menores. Em outras palavras, o ICMS-ST com base em valores presumidos não seria definitivo e comportaria ajustes – restituição ou complemento – para adequá-lo ao valor efetivamente praticado nas operações seguintes.

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O que acaba de ser decidido é que a tributação pelo regime de substituição tributária não é definitiva, havendo a obrigação dos Estados ressarcirem os valores pagos a maior por presunção quando as operações futuras ocorrerem em valores menores do que aqueles que serviram de base para o recolhimento antecipado do ICMS-ST.

A despeito de não enfrentar a situação que impõe a obrigação do contribuinte pagar complemento de ICMS quando as operações efetivas ocorrerem em valores maiores aos que serviram de base para o recolhimento do ICMS-ST, parece bastante sensato que o mesmo tratamento deve ser empregado.

É fundamental entender que este posicionamento altera a jurisprudência anterior do próprio STF, especialmente aquela firmada no julgamento da ação direta de inconstitucionalidade (Adin) nº 1851, impondo a modulação dos seus efeitos de modo a atingir apenas as operações futuras e aquelas ações que buscam o ressarcimento já em andamento. Busca-se segurança, confiança e estabilidade, preservando-se situações já consumadas e proteção aos contribuintes de boa-fé que buscaram judicialmente o seu ressarcimento.

Quanto ao complemento de ICMS, entendo coerente que a modulação também deva atingir apenas operações futuras, preservando relações passadas consumadas. O comportamento do contribuinte de boa-fé não pode ser traído por esta alteração jurisprudencial. Vale dizer, quem pagou o complemento no passado, pagou. Quem não pagou, não pode ser compelido a pagar, tenha ou não ação contra ele ajuizada.

Foi com este espírito que o STF modulou efeitos no julgamento da Adin nº 4.481, afirmando que “a modulação dos efeitos temporais da decisão que declara a inconstitucionalidade decorre da ponderação entre a disposição constitucional tida por violada e os princípios da boa-fé e da segurança jurídica.” Tal como neste caso, naquela oportunidade obstou-se a exigência de ICMS dos contribuintes decorrentes de uso indevido de benefício fiscal inconstitucional.

Fonte: Contábeis
Data: 25 de novembro de 2016
Acesso: 25 de novembro de 2016

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