A inconstitucionalidade da cobrança do ICMS-DIFAL nas operações envolvendo destinatários contribuintes do imposto sem a prévia edição de Lei Complementar regulamentadora

• Autor(a) principal: Argani, Gustavo Luiz
• Data de Publicação: 2022
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/31793
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; ICMS; Diferencial de alíquotas; Circulação interestadual de mercadorias; Lei Complementar; Constituição Federal; Regras constitucionais; ICMS [VAT]; Differential rate; Interstate circulation of goods; Complementary Law; Federal Constitution; Constitutional rule

This paper aims to analyze the institution, in the Brazilian legal system, of the requirement of the so-called Differential of rates of the Tax on Operations Relative to the Circulation of Goods and on the Provision of Interstate and Intermunicipal Transport and Communication Services (ICMS – DIFAL [Brazilian VAT]) by Brazilian States Federation, in order to verify if there was the necessary observance of the guiding elements of the national tax system, such as the constitutional rules, the principles of tax law, the jurisprudence of the Superior Courts, among others. Considering that the differential of rates constitutes a new tax to be collected by the taxpayers of the operations related to the interstate circulation of goods in the national territory, it is certain that its regulation must be in accordance with the norms contained in the Federal Constitution, so that the constitutional guarantees and legal certainty fundamental to the proper functioning of the Democratic State of Law are ensured. In this scenario, considering ICMS - DIFAL was not regulated by a Federal Complementary Law in the manner prescribed by the Constitution, the reasons why the tax issues of this nature, notably in operations involving recipients’ taxpayers, suffered from defects of unconstitutionality as will be demonstrated, and the reasons why the attempts at regulation (such as, for example, through Protocol No. ICMS 21/11 and ICMS Agreement No. 93/15) didn’t have support on the legal system. In order to demonstrate the unconstitutionality, we applied a historical-legal approach to the institution of the ICMS tax differential, in particular the constitutional rules concerning the Limits of the Power to Tax, as well as the understandings signed by the Federal Supreme Court. In view of the thesis established in the judgment of RE No. 1,287,019-RG (Topic No. 1,093), which declared the need for a Federal Complementary Law regulating ICMS - DIFAL in operations involving parties who do not figure as a ICMS contributor, the reasons why the the same grounds apply to interstate shipments of goods to tax-paying parties