A criminalização da inadimplência do sujeito passivo do ICMS: Art. 2º, II da Lei nº 8.137/1990

Abstract

This dissertation aims to analyze whether it is possible to state that, in the event of non-payment of the Tax on Circulation of Goods and Provision of Interstate and Intermunicipal Transport and Communication Services – ICMS, both in its form by tax substitution and that incident in own operations, the crime of tax misappropriation is configured, prescribed in art. 2nd, inc. II, of Law nº 8.137/90. We understand that there is no tax subsumption between the conduct relating to non-payment of the aforementioned tax and the type of tax criminal mentioned, which is why the understanding reached by the Federal Supreme Court in the records of the Ordinary Appeal in Habeas Corpus nº 163.334/SC does not suit the principles of legality, typicality and legal certainty in tax matters. The criminal tax norm, before being a criminal norm, is a tax norm, and cannot distort the hypothesis itself and its consequent regulations, but rather propagate its effects within the constitutional limits of each tax, in this case, the ICMS. This tax cannot be considered as charged by the supplier and added to the final price of the products. The ICMS to be collected from the public coffers is not that contained in the Invoices issued for each sale, but rather the tax calculated at the end of each month, an opportunity in which the taxpayer can make use of the offset between credits and debits, taking into account the principle of non-cumulativeness. The existence of a possible economic repercussions of the tax, which would make the final consumer the taxpayer in fact, consists of a legal fiction to justify the criminalization of tax default related to ICMS, a situation that should be restricted to the care of Tax Law and Administrative Law, and not Criminal Law