6/7/2021
The Government of São Paulo State enacted the Decree No. 65,593/2021, regulated by the Ordinance CAT No. 25/2021, which establishes the Optional Taxation Regime (ROT).
The forementioned regime consists in exempting the taxpayers that operate in the retail sector from any complementation of the ICMS withheld in advance by tax substitution, even if the value of the operation exceeds the calculation basis used for the collection of such tax. On the other hand, during the period in which it is bound to the ROT, the taxpayer cannot apply for the refund of the ICMS withheld in excess in cases in which the value of the operation is lower than that assumed as the calculation basis at the beginning of the seller chain.
The purpose of this new optative tax regime, therefore, is to simplify the tax substitution regime, so that taxpayers that are subject to this system do not have the burden of verifying, after their operations are carried out, whether the presumed calculation basis used for the calculation and collection of the ICMS is correct, making this payment definitive.
It should be noted that the option to the ROT, however, is only available to taxpayers belonging to an economic segment authorized by the Treasury and Planning Secretariat. Therefore, it is up to the entities representing the sectors to formally express their interest, before the competent public office, in obtaining such authorization.
After the proper authorization, the interested taxpayers – as long as they operate as tax substitutes in the retail sector – shall apply to the ROT, with the exception only of Individual Microentrepreneurs – MEI, which, as of August 1st, 2021, will be automatically included in this regime, unless they submit a statement opposing the inclusion.
Additionally, it is important to notice that the minimum period of permanence in the regime is 12 months, after which the taxpayer may submit a waiver request, being, in this case, prevented from opt to the regime for a period of one year.
Finally, it is worth mentioning that the ROT seems to have been implemented in response to the judgment rendered by the Federal Supreme Court in RE No. 593.849, when the decision recognized the taxpayers’ right to recover the amounts overpaid for ICMS-ST (when the subsequent transaction is carried out at an amount below the presumed tax basis), not covering the right of the State Tax Authorities to claim the supplementary tax from the same taxpayers in situations in which the tax is underpaid (i.e. when the subsequent transaction is carried out at an amount above the presumed tax basis).
For that reason, at the Tax Authorities’ view, the ROT (which eliminates both the taxpayer’s right to recover the ICMS-ST paid in excess and the Tax Authorities’ alleged right to collect the ICMS-ST underpaid) resolves this discrepancy.
Our tax team is available to provide clarification and guidance on the addressed subject.
Coauthors: Alessandra De Simone and Tiago Zonta Guerreiro.
