CRIMINALIZATION OF ICMS DEFAULT

Abstract

This article focuses on analyzing the framework of the taxpayer who declares, but does not collect, the ICMS own operation provided for in article 2 II of Law nº 8,137 of, 27 Dec 90. This has generated a lot of controversy and discussion between courts and scholars regarding the judgment of the Ordinary Appeal in HC nº 163.334/SC, where the STF consolidated the understanding in order to criminalize the lack of payment of ICMS in any and all operations, as long as the taxpayer is persistent and has intentional appropriation. However, the doctrine understands that the aforementioned crime would only apply in cases of ICMS collected by ST, and never in cases of ICMS collected by its own operation, this situation being a mere default. Aiming to clarify the main points about the controversy, this article initially addresses the main characteristics of ICMS, and subsequently addresses the difference between the ICMS collection modalities and the main characteristics of the type of criminal offense that may be imposed. It is concluded that the Supreme Court established a mistaken understanding by criminalizing the conduct of the taxpayer who declares, but does not collect the ICMS himself, since, being the taxpayer (in fact), the taxpayer himself in the legal-tax relationship, and there is no crime, but mere tax default. Finally, the STF's decision creates legal uncertainty in relation to other taxes that also have an economic repercussion on the price of the product in each chain and that the attempt to combat tax crimes through the imposition of a custodial sentence could further stimulate the tax evasion and informality, harming tax collection.