A criminalização do não recolhimento doloso e contumaz do ICMS próprio: uma análise da decisão do STF no Recurso Ordinário em Habeas Corpus (RHC) n° 163.334

Abstract

The national tax system, which comprises, among others, the regulation, guidelines, principles and other precepts about the tax activity in the country, has as its first regulation, the Federal Constitution of 1988, which lists the types of taxes that may be instituted by the federative entities, among which, of state competence, is the Tax on Transactions on the Circulation of Goods and Services Rendering of Interstate and Intercity Transportation and Communication (ICMS), provided for in art. 155, II, of the Constitution. The ICMS is the main source of revenue for the Brazilian states, however, the rate of declaration of the ICMS Own and its non-collection to the state coffers is high, which influences their economic structures and, consequently, the state public actions regarding the destination of the amounts collected with this tax. Given these circumstances, in December 2019, based on the preservation of the collecting state and its public coffers, a thesis was established by the Plenary of the Federal Supreme Court, in the trial of the Ordinary Appeal in Habeas Corpus (RHC) No. 163.334, reported by Minister Luis Roberto Barroso, under the understanding that it is constitutional to criminalize the malicious and contumacious non-collection of ICMS Próprio, regularly declared, under Article 2, II, of Law No. 8137. In this sense, the general objective was to understand the judgment of the Ordinary Appeal in Habeas Corpus (RHC) No. 163.334, analyzing the votes, for and against, of the Justices of the Supreme Court, as well as to present the understanding of the doctrine about the thesis established, pointing out the foundations and consequences of its application. The specific objectives were: a) to present the legal characteristics of the ICMS tax; b) to analyze the legal concepts of embezzlement, ICMS delinquency, willful misappropriation, crime against the tax system and tax fraud; c) to discuss the provisions of article 2, II of Law No. 8137 and its applicability, based on the votes of the STF Justices; d) to present the doctrine's position on the thesis established. To elucidate the outcome of the trial held by the STF and, consequently, the content of the thesis under discussion, this research was based on the studies of the following theorists: Bartine (2020); Bitencourt (2019); Bottesini (2018); Cassone (2018); Félix (2018); Harada (2018); Machado Segundo (2018); Nucci (2020); Paulsen (2020); Prado (2019); Sabbag (2018); Salvador Netto (2019); Torres (2019). that the STF was mistaken when it established the approached thesis and defined as a crime of misappropriation the wilful and contumacious non-collection of ICMS, since I understand that the special subjective element of the criminal type does not exist when the taxpayer, in good faith and in a reputable manner, declares to the tax authorities the tax properly recorded, therefore there is no fraudulent conduct that characterizes the incurrence of the offense under discussion. Still, even though the understanding favorable to criminalization presents in the thesis that the practice of the offense waives fraud, as well as in the crime foreseen in article 168 of the Penal Code, I conclude that, as already outlined, the criminal type does not exist in the Brazilian legal system, and the interpretation of article 2 of Law No. 8137 of December 27, 1990 by analogy in mala partem is unconstitutional.