Substituição tributária progressiva: a redução da praticabilidade pelo STF e a consequente desproporcionalidade do regime

• Autor(a) principal: Salomão, Daniel Cunha
• Data de Publicação: 2023
• Outros Autores: [e-mail]
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/19904
• topic: Progressive tax substitution; ICMS; Tax practicality; Substituição tributária progressiva; ICMS; Praticabilidade tributária; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO TRIBUTARIO

The progressive tax substitution goes back to the time of the old ICM, inserted in the original text of the National Tax Code, from the 60's, which made it possible for the law to attribute the condition of being responsible to the industrialist or wholesaler for the tax owed by the retailer. Subsequently, through Constitutional Amendment 03/93, § 7 was inserted in art. 150 of CF/88, with the mission of settling controversies on the subject, authorizing the presumption of a taxable event, considered by many scholars as true legal fiction. With this, the objective was to bring about a gain of scale with regard to tax administration, restricting the scope of inspection to larger companies, making them responsible for the collection of taxes due by those located at the end of the chain. In effect, despite the doubts raised by the prescriptive declaration of the aforementioned amendment, the Federal Supreme Court established its constitutionality, with the presumption of a taxable event being legally viable, considering its purposes, in honor of the principle of practicability, there being, according to the plenary, violation of fundamental rights and guarantees of taxpayers, notably, the ability to pay. As of 2016, with the judgment of Extraordinary Appeal 593,849, which enabled the refund of the tax substitution tax paid in excess, when the calculation basis of the actual operation has been carried out at a lower value, a step was taken towards the deconstruction of this systematically, since this possibility compromises the practicability of the collection technique. Furthermore, with the advancement of the digital tax bookkeeping system, the need for the presumption of a future taxable event is questioned, which can be verified automatically when it actually occurs and by its exact amount. Thus, the present study, in addition to revisiting the controversial aspects of progressive tax substitution, will have the power to verify its current applicability and whether its benefits still persist, in the midst of jurisprudential and technological innovations.