Companies that collected ICMS on bonus merchandise are entitled to credit crediting. The decision is from the first class of the Superior Court of Justice (STJ), by judging an action brought by a large dairy company against the Court of Justice of São Paulo (TJSP).
The class decided that the requirements imposed by Article 166 of the National Tax Code (CTN) do not apply to cases of credit claims for unconditional bonus-bonus - discount mobile practiced by merchants which consists in the delivery of greater Product instead of reducing the sale value. This device says that "the restitution of taxes that behave, by its nature, transfer of the respective financial burden will only be made to whom to have assumed this charge, or, in the case of having transferred to the third party, to be by this expressly authorized to receive it ".
The first class advanced in matter, since in addition to understanding that unconditional bonuses do not integrate the calculation basis, admitted the crediting of paid values. Practice is widely used as a way to encourage sales. The buyer of the goods, in the case, is benefited from reducing the average price of each product, without this involving reduction in the price of the business.
About tax refund
Even, the rapporteur at the STJ, Minister Napoleon Nunes Maia Filho, explained that indirect taxes such as ICMS and IPI, which bear the transfer of the financial burden are made to rephrase. Consequently, in the case of compensation, the proof of non-repercussion is required to avoid the unique enrichment of those who did not effectively support the payment of the tribute. According to the minister, although the tribute is indirect and, in thesis, he admits the transfer, there is no legal repercussion because it is the company itself that arots not only with the value of the bonus, but with the taxes on it incidents. / p> The case analyzed by STJ was proposed in 2001 and the Minister's understanding, the systematic is observed prior to complementary law 118/95, which imposes the decadent term of five years for the approval of the Constitution of the Tax Credit by self-operating, as well as the five-year prescription period for the exercise of the right of action (thesis of five five more).
In general, ICMS refund submit to the rule of Article 166 of the National Tax Code (CTN). Said STJ class decided that, in situations of unconditional bonuses - in which nothing is charged by the bonused goods - the requirements of Article 166 need not be fulfilled.
