THE DIFFERENCE FOUND IN THE COLLECTION OF THE BRAZILIAN CONSUMPTION TAX (ICMS) ON THE MECHANISM OF REVERSE CHARGE?

Abstract

The present work has the purpose of analyzing the institute of reverse charge (withholding taxes) and its peculiarities in the collection of the Brazilian consumption tax (ICMS) by the taxpayer. It comments on the principles that support the collection of ICMS and addresses questions that are essential for the comprehension of the mechanism of reverse charge, regressive and progressive, analyzing the evolution of the understanding of the highest courts of jus-tice regarding the refund of the ICMS overpaid. Also it examines the decision by the Brazilian Supreme Federal Court of Justice, which established the general repercussion thesis that guarantees the right of refund to the ICMS’ tax withholder, in the circumstance of overpayment. The analysis aims to demonstrate the effects of such understanding and its analogous applications, that is already utilized by some States, as a way to allow the collection of the underpaid amount on this same modality, through an analysis of favorable and contrary judicial decisions, under the perspective of the legality principle in taxation.