Benefícios fiscais do ICMS: positivação, natureza jurídica e requisitos de concessão

Abstract

The tax benefits of ICMS are present in all Brazilian States and its Federal District and are the main architect, or the main “weapons”, of the inexorable predatory fiscal competition, called “fiscal war” between these legal entities of domestic public law, bringing consequences in various fields such as political, economic, social, and legal, which will be treated specifically in this work as a result of epistemic cut. The joint reading of article 155, paragraph 2, XII, “g”, of the Brazilian Federal Constitution of 1988, of Complementary Law 24/75 and of the new entry into the legal order, Complementary Law 160/17, followed by ICMS Agreement 190/17, provided elements for a better understanding of the positive impact of ICMS tax benefits, as well as its legal nature and concession requirements, not to mention the novel institute of validation inaugurated by LC 160/17. The justification of this research is based on the original approach of treatment of ICMS tax benefits, denomination adopted due to the generalizing expression used by LC 160/17, since this institute, in spite of its peculiarities, has not been the subject of sufficient scientific attention of the doctrine, in spatial terms with regard to the positivization process that has always been sufficiently distorted with regard to the tax benefits of ICMS, usually granted without observing the rules and the normative hierarchy, axiom of the legal order. The starting problems are: i) the exercise, sometimes unlawful, of the jurisdiction of the ICMS in granting its tax benefits, since the legal order obliges the State and the Federal District to meet requirements that will interfere with the validity of these exemptions; ii) the disorderly concession of benefits disobeying the phenomenon of positivization. The objective of the research is to investigate the phenomenon of the positive tax benefits of ICMS, verify the exercise of jurisdiction in the concession of these institutes, as well as delimit their legal nature and establish the requirements that must be met when they are granted to be considered valid. The methodology used is based on the analytical-hermeneutic method, sedimented by the School of Logical-Semantic Constructivism, with attention to the logical, semantic and pragmatic planes, delimiting the tax benefits of ICMS, with due epistemological cuts to better explain its positivization process, its legal nature and its concession requirements. The central hypothesis is that tax benefits of ICMS must, in addition to meeting certain requirements, obey the positivization process rigorously, otherwise, if deviations occur, these benefits suffer from invalidity, which is why jurisdiction to grant such exemptions would be exercised unlawfully. Also, having established the legal nature of ICMS tax benefits as the fifth tax exemption category, they always occupy the classification of individual and abstract standards, as the introducing vehicle, that is, the process, whose product will culminate in the outbreak of the incident through individual standards and concrete