A criminalização do não recolhimento de ICMS próprio: análise do julgamento do habeas corpus 399.109-SC pelo STJ

Abstract

The current work deals with Criminal Tax Law, and aims to analyse the legal, doctrinal and juridical fundaments that grounded the decision towards the Habeas Corpus 399.109-SC by the Third Panel of the Superior Court of Justice. The main discussion was about the application of tax misappropriation crime (art. 2º, item II, Law no. 8.137/1990) to people who did not collect proper Sales Tax (ICMS). Taking a critical approach, it can be said that the existence of the tax criminal illicit is critically important to ensure the protection of the legal order. However, criminal meanings were clearly used as a form of compulsory tax collection, so the result of the HC 399.109-SC judgment contains several inconsistencies with the best tax doctrine. It is believed that due attention was not paid to the tax institutes and, in its eagerness to protect the state's collection, the Third Panel understood that TJSC’s decision should be maintened. This decision condemned the patients for misappropriation of ICMS duly declared and inscribed in active debt. Moreover, STJ’s decision showed excessive rigor by not realizing the transgression of some expensive principles guaranteed by the homeland laws, such as the prohibition of civil prison for debt, the due process of law and the full defense. The discussion made by this work reinforces the importance of protecting State’s legal goods, but it must be done to the right extent and in accordance with all the peculiarities of the matters involved. Finally, it criticizes the manner in which the trial was conducted. Important lessons such as tax substitution, tax credit formation, and the position of each person in the tax legal relationship have, in the Panel’s view, mistakenly led to a crime that does not apply to this case. The research has a descriptive nature, being conducted through extensive bibliographic and jurisprudential research.