Concerning Legal Standing to claim Refund of Overpaid Taxes of Taxes Submitted to the Tributary Substitution

Abstract

In judging the RE n. 593,849, Brazilian Federal Supreme Court approved General Repercussion Thesis 201, stating that the restitution of the ICMS difference overpaid in the forward tax substitution regime is due when the effective calculation basis of the transaction is less than assumed calculation basis. Faced with this decision, the debate about the best interpretation of article 166 of the National Tax Code has returned. The objective of this paper is to present a point of view on the conditions of applicability of this device to the hypothesis of tax substitution. To this end, the subject is initially addressed about the relevance of the classification of taxes into rights and indirect taxes in the study of the legal phenomenon. Next, attention is drawn to the construction of the meaning of the expression “transfer of the respective financial charge”, used in article 166 of the National Tax Code, to subsequently verify whether the phenomenon of tax substitution fits the normative hypothesis built from that device. Finally, it is identified who is that person who, according to the device, must prove to have assumed the charge to postulate the repetition of the undue payment, opportunity in which the issue of procedural legitimacy is faced. In the end, it is concluded that the general rule is that active legitimacy is of the substituted, and of the substitute only in exceptional cases, if he/she proves that he/she has borne the tax burden or if he/she demonstrates that has obtained the authorization of the taxpayer to claim repetition.