In recent decision, the plenary of the Federal Supreme Court, by a majority (7x3), understood the refund of the difference between the actual value of marketing of the products and that arbitrated by the State Farm for the purpose of operating the tax substitution regime Progressive of ICMS, noting that the principle of practicality (simplification of procedures for collection and supervision) can not overlap to the principles of equality, contributory capacity and sealing to confiscation.

In fact, in the tax substitution regime "forward," the tribute is collected at the beginning of the productive chain for a price previously fixed and presumed by the taxpiece, anticipating at the time of sale, at the end of the chain, by the network Retailer.

The core of the controversy is in the correct interpretation to be given to the expression "if the presumed generating fact", contained in Article 150, paragraph 7, of the Federal Constitution. This device provides for the right to refund in advance whenever the presumed generator does not be concretized, that is, in the hypotheses where the definitive generating fact is done in a distinct way from that taxed in the initial stage of the productive cycle. Thus, if the final operation value is higher than outlined at the presumed calculation, the right to refund the amount pays the largest paid.

The trial was carried out in general repercussion in Re No. 593,849, brought by a mining company, which operates in trade in fuels and lubricants, against unfavorable decision of TJMG.

The Reading of the Decision, it is verified that the STF modulated the effects of the judgment to "outstanding judicial litigation submitted to the systematic repercussion and future cases from anticipating the payment of presumed generating fact carried out after the fixing of the present understanding, taking into account the necessary realignment of the administrations of the Member States and the judicial system as a whole decided by this cut. "

The effects of this decision are restricted to outstanding actions and future cases. This judgment will take effect to approximately 1.3 thousand processes overested at the origin awaiting definitive judgment. The taxpayers who are feeling injured and aims to take advantage of the favorable effects of this new understanding must propose actions before the Judiciary.