On March 9, 2021, Law No. 9,198/2021 was published, complementing the ICMS-ST (tax substitution system) regulation by adding Article 28-A to Law 2,657/1996 (State ICMS Law).

The new law establishes the following :

  • If the amount collected as tax substitution is less than the value of the set of operations actually carried out in the period, the replaced taxpayer must pay the difference of ICMS;
  • If the value of the set of operations carried out in the period is less than the one withheld as tax substitution, the replaced taxpayer must request the refund of the difference, provided that full payment by the substitute taxpayer is proven.

The law adapts the state's legislation to the Brazilian Supreme Court’s (STF) decision in the trial related to the Extraordinary Appeal No. 593,849/MG, with binding effects.

The law applies to presumed taxable events occurring after October 24, 2016, and also to lawsuits filed up until that date.

Regulations will be issued within 90 days of March 9 on the terms and conditions under which the difference will be refunded or must be supplemented.

The law was effective as of its publication date.

For more information related to this Legal Update, please contact our Tax team.