O CRIME DE APROPRIAÇÃO INDÉBITA NO CONTEXTO DA INADIMPLÊNCIA DO ICMS: UMA ANÁLISE DA DECISÃO DO STF PROFERIDA EM SEDE DO RECURSO ORDINÁRIO EM HABEAS CORPUS N°163.334

Abstract

The present work aims to analyze the decision of the Federal Supreme Court handed down in the ordinary recourse in habeas corpus n°163.334, in December 2019. In this decision, thesis was established thesis on the criminalization of taxpayers for declared ICMS debts. In order to curb the persistent and willful default of ICMS. In this way, we present the vote given by each Minister of the STF, present in the decision, in addition to the applicability of the thesis in the judgments of the Courts. Among the arguments presented, we highlight the fact that companies that intentionally and systematically fail to comply with the tax rules, failing to collect the tax due from the public coffers, obtain an undue advantage in relation to other companies in the same segment, constituting a true affront to the constitutional principle of free competition. Methodologically, through a bibliographic research of specialist authors, we analyzed the alignment of the sentence with the doctrine and related jurisprudence and the possibility of the thesis having been signed influenced by judicial activism. The objective of the work was to present an argumentative and theoretical substrate that did not intend to exhaust the matter, but that sought to bring light to its field of application. Finally, it is concluded that the characteristics of ICMS collection and the fact that the taxpayer issues an invoice highlighting the tax, as well as the taxpayer's own declaration to the tax authorities, allow the verification that the amount paid for the goods had in its price the embedded tax amount. And so, charging the ICMS to the consumer and not passing it on to the State coffers, also meeting the requirements of default and misappropriation, would characterize the typicality of the criminal offense. Regarding the presence of judicial activism, we consider that it was present in the decision of RHC 163.334/SC, since political, economic, legal and even social factors were considered for the decision making.