STJ Tema 1.125 and STF Tema 201 · SPD Advocacia
ICMS-ST: the company may recover what it overpaid
Companies that resell goods under tax substitution may have paid PIS and Cofins (federal contributions on revenue) on ICMS-ST (the state tax on goods collected in advance by the supplier) and overpaid ICMS when they sold below the presumed price. Both amounts may be recovered.
ICMS-ST out of PIS and Cofins
The STJ (Brazil's Superior Court of Justice) decided in Tema 1.125 (a repetitive appeal judged on December 13, 2023) that ICMS-ST is not part of the calculation base of the PIS and Cofins owed by the reseller, known as the substituted taxpayer. In the motions for clarification, the effects were set from March 15, 2017, except for lawsuits filed up to that date, the same rule as in the ICMS case at the STF (Brazil's Supreme Federal Court). PGFN (the National Treasury's attorney office) recognized the right in a legal opinion, provided the tax is shown separately on the invoice.
ICMS-ST overpaid on the sale
The STF decided in Tema 201 that the difference in ICMS overpaid under tax substitution must be refunded when the sale is made at a value lower than the presumed base. Under the modulation, the thesis applies to court cases that were pending and to advance payments made after the judgment of October 19, 2016. In Tema 1.191, the STJ set aside, in this situation, the requirement of art. 166 of the CTN (National Tax Code), which demands proof that the tax was not passed on to the consumer.
Point of attention. Some decisions allow the State to charge the difference when the sale is made above the presumed base. For this reason, each case is simulated in both directions before any request.
Requirements
Key points
Buys goods with ICMS-ST already paid by the supplier.
ICMS-ST shown separately on purchase invoices.
For PIS and Cofins, companies under presumed or actual profit.
As a rule, the last 5 years.
Source: STJ, Tema 1.125 (REsp 1.896.678 and REsp 1.958.265, with EDcl in REsp 1.958.265); STF, Tema 201 (RE 593.849); STJ, Tema 1.191; PGFN Opinion SEI 4.090/2024; CTN, arts. 165 and 168.
What is your case?
Situations the firm handles
Distributors and resellers
Products under tax substitution in almost the entire chain.
STJ, Tema 1.125Stores and distributors
Parts and tires sold with ICMS-ST.
STJ, Tema 1.125Medicines and personal care
Resale with a high presumed base.
STF, Tema 201Building materials
Items with ICMS-ST on purchase.
STJ, Tema 1.125Price below the presumed base
Difference in overpaid ICMS-ST.
STF, Tema 201Sale above the presumed base
The State may charge a supplement.
Case reviewStep by step
How the firm works
- Review. We check the tax regime, invoices, payment slips and tax calculations for the last 5 years.
- Calculation. We show how much may be recovered and how much the company stops paying from now on.
- Filing. Administrative request, tax offset or lawsuit in the Federal Courts, depending on the case.
- Follow-up. Deadlines, decision, offset and receipt of the amounts.
Case review
Let us review your case
Answer the questions, one at a time. At the end you can attach documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp. Everything is protected by attorney-client confidentiality.
Common questions
Frequently asked questions
Is a Simples company entitled?
Excluding ICMS-ST from PIS and Cofins targets companies under presumed profit and actual profit. The refund of overpaid ICMS-ST is reviewed case by case, including in the Simples Nacional, the simplified regime for small businesses.
Do I need to go to court?
It depends. For PIS and Cofins, there may be a tax offset based on the PGFN opinion, or a lawsuit. For ICMS-ST, there is a request to the state Finance Department, or a lawsuit.
How much can I recover?
The amounts overpaid in the last 5 years, with monetary adjustment. The calculation is done before any request.
What about the tax reform?
PIS and Cofins end on January 1, 2027. ICMS will be gradually replaced by the IBS (the new tax on goods and services) until 2033. Amounts paid until then remain recoverable within the time limit.
Do you work with companies from other states?
Yes. Proceedings are electronic and service is online across the country, with headquarters in Anápolis-GO.
How much does it cost?
After the review, the firm sends a written fee proposal, before any engagement.
Lawyer to recover ICMS-ST
SPD Advocacia, based in Anápolis-GO, serves resellers across Brazil, and clients abroad, that want to exclude ICMS-ST from PIS and Cofins and recover overpaid ICMS-ST.
STJ Tema 1.125
ICMS-ST is not part of the calculation base of the PIS and Cofins owed by the substituted taxpayer.
STF Tema 201
Overpaid ICMS-ST must be refunded when the actual sale base is lower than the presumed base.
Informational content, in accordance with OAB (Brazilian Bar) Provision 205/2021. Each case depends on a review of the documents, and no result is promised.