Retailers of all segments in the State of S\u00e3o Paulo can join the Optional Taxation Regime (ROT) starting tomorrow. The goal is to simplify the advance payment of ICMS through tax substitution (ST). For those who join, the amount collected from ICMS-ST will become definitive. Taxpayers who remain in the current regime may be required to pay additional tax, in addition to being subject to inspection.<\/p>\n\n\n\n
In tax substitution, a taxpayer in the production chain collects ICMS for others, based on an estimated price. In ROT, this taxpayer waives the right to request reimbursement when selling the product to the end consumer for a lower value than the presumed value. The State, in turn, is prevented from demanding additional payment if the company sells the product for a higher price.<\/p>\n\n\n\n
The collection of ICMS-ST is relevant for the S\u00e3o Paulo government. From January to October, R$$ 24.9 billion was collected through tax substitution. The amount corresponds to approximately R$15% of the total tax collection. In 2020, it was R$$ 25.8 billion.<\/p>\n\n\n\n
S\u00e3o Paulo followed in the footsteps of other states \u2013 such as Rio Grande do Sul and Minas Gerais \u2013 and instituted the ROT in response to a decision by the Federal Supreme Court (STF). In 2016, the Court ruled that state treasuries must refund the ICMS-ST if the sale price charged by the taxpayer is lower than the one set (RE 593849).<\/p>\n\n\n\n
In the first ten months of this year, the S\u00e3o Paulo State Finance and Planning Department (Sefaz-SP) received 69,415 refund requests, totaling R$4.9 billion. The total tax supplements in the same period were R$652.4 million. Last year, the amounts were lower: R$2.5 billion and R$194.6 million, respectively.<\/p>\n\n\n\n
The requirement for additional payment of ICMS-ST is lower than the amount of reimbursement because, until then, there was no specific regulation for calculating the supplementary tax, explains Ana Paula Galletta Machado, director of service, management and compliance at Sefaz-SP. \u201cThe supplement was only paid by the taxpayer who also requested reimbursement. There was then a deduction in the amounts,\u201d she says.<\/p>\n\n\n\n
In October, Sefaz-SP, through Ordinance CAT No. 80, changed some rules for joining the system. The main one was to open the doors to the accreditation of any retailer located in the state. Previously, Ordinance CAT No. 25\/2021 provided that the Tax Authorities would determine the segments authorized to enter the system.<\/p>\n\n\n\n
According to the rule published in October, taxpayers who join the ROT between the 10th and 30th of this month will feel the effects of the regime retroactively to January 15th. Therefore, they will not need to pay the additional ICMS-ST related to the taxable events of the last nine months.<\/p>\n\n\n\n
The Treasury, however, establishes a condition. It foresees that retroactive adherence to the ROT is only valid for taxpayers who have not filed a request for ICMS-ST reimbursement between January 15th and the 30th of this month.<\/p>\n\n\n\n
Ana Paula Galletta Machado, from Sefaz-SP, states that it will not be possible to cancel the refund in order to obtain the retroactive effect. \u201cTaxpayers who made the request have already received the refund. Furthermore, Ordinance No. 25 [published on May 1] already provided that those interested in joining could not request a refund,\u201d she says.<\/p>\n\n\n\n
For tax experts, this is a sensitive issue and could raise questions. \u201cIt creates a major competition problem and a breach of equality,\u201d says attorney Andr\u00e9 Menon, from the Machado Meyer law firm. According to him, diligent taxpayers who filed a refund request are at a disadvantage compared to competitors who did not do the same. \u201cThe former will have to pay the supplement, which creates a cost problem that is reflected in the margin and price of the merchandise.\u201d<\/p>\n\n\n\n
Taxpayers who have filed a refund request will be able to join the ROT until the 30th. However, they will feel the effects in the future, starting on December 1st. Companies under the Simples Nacional and individual microentrepreneurs (MEI) will be automatically accredited under the retroactive regime. They will only have to express their opinion if they wish to renounce their membership.<\/p>\n\n\n\n
Companies that miss the deadline can join at any time and the effects will come into effect the following month. However, the minimum period of stay in the ROT is 12 months.<\/p>\n\n\n\n
Large retailers, say lawyers, need to do the math to see if joining is worthwhile. They should also consider that entry into the regime is per legal entity and not per establishment. \u201cIt is beneficial, above all, for those who have a lot of ICMS-ST to pay and for those who do not seek reimbursement,\u201d points out Jo\u00e3o Paulo Muntada Cavinatto, partner at the firm Lefosse Advogados.<\/p>\n\n\n\n
For small and medium-sized retailers, the advantage would be to save time on compliance rules, says Gustavo Haddad, a partner at the same firm. \u201cVerifying supplements and refunds requires very strict control,\u201d says the lawyer.<\/p>\n\n\n\n