At the end of 2017, Justice Regina Helena Costa, of the First Panel of the Superior Court of Justice (STJ), admitted an appeal against a divergent decision filed by a taxpayer (EAREsp No. 1.078.194/RJ) against an appellate decision that established the understanding that the ICMS-ST is not a tax different from the ICMS-normal, but merely a form of collection, while maintaining the application of article 13, paragraph 1, I, of Complementary Law No. 87/96, which would legitimize the inclusion of the ICMS-ST in its own base.

The decision seems entirely correct, as the current case law of the STJ has precedents allowing the use of article 8 of LC 87/96, including to ascertain the ICMS/ST taxable base, in addition to other judgments that differentiate normative treatments recognizing that article 8 deals with the taxable base of the ICMS/ST, while article 13 deals with the taxable base for the ICMS-normal, which was well identified and pointed out by the Justice in her decision.

The subject is quite contested and controverted. It is worth remembering that, shortly after the decision handed down by the Second Panel of the STJ in Special Appeal No. 1.454.184/MG, in which it was decided that the ICMS-ST is included in its own taxable base, following the “inside taxable” base of the ICMS itself, the states of the Federation decided to promulgate ICMS Convention No. 52/2017, which, among other unconstitutionalities and illegalities, defined, in its article 13, that the ICMS-ST is included in its own taxable base.

In view of the controversy created with the publication of ICMS Convention 52/2017, the issue also reached the Federal Supreme Court (STF), through ADIN No. 5.866, which even seems to have influenced the repeal of that rule by ICMS Convention 142/2018 at the end of last year.

There is an important distinction to be made regarding the issues to be faced by the Higher Courts, since while in the Federal Supreme Court the debate should revolve around formal aspects for the institution of the ICMS-ST, in the STJ it should stick to the taxable base provided for in national complementary legislation.

Considering the materiality of the debate, the review of this case by the First Section of the STJ may, finally, put an end to the matter, by defining whether the tax authority may make use of the provision (article 13 of LC 87/96) that regulates the taxable base of the ICMS-normal for the calculation of the ICMS-ST or whether it should be governed by article 8 of LC 87/1996.

Surprisingly, contrary to her own well-founded decision of 2017, Justice Regina Helena Costa issued a new decision in early 2019; now, however, to not hear the appeal against a divergent decision, which may lead to the filing of an interlocutory appeal by the taxpayer.

Assuming that the last decision will be reviewed by the Justice, which is expected in view of the relevance of the issue, and the case is again submitted for analysis by the First Section of the STJ, the ruling to be delivered by the Justice of the STJ that make up this body will have a direct impact on all legal relationships and on the ongoing claims in which the inclusion of the ICMS-ST in its own taxable base is debated.

The correct and timely assignment of such a relevant topic to the First Section of the Superior Court of Justice will, in fact, prioritize the legal certainty demanded by litigants, in addition to justifying the greater purpose of that Superior Court, which is to standardize the application of ordinary legislation.