Tax default. The taxpayer who declares the ICMS owed by their own company, but fails to pass the amounts on to the public coffers, does not commit a crime against the tax order. According to a decision of the 5th Panel of the Superior Court of Justice, the act constitutes mere default.
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With this understanding, the panel upheld the acquittal of two partners of a company in the medicines sector. They were charged with having failed 14 times to collect amounts corresponding to the ICMS allegedly charged to third parties. The default was discovered by an auditor in the analysis of the entries made by the company in the tax books. The information was published by Consultor Jurídico.
The first-instance judge sentenced the pair to one year of detention, replaced by a restriction of rights, and 375 day-fines. The sentence was reformed on appeal analyzed by the Court of Justice of Goiás to acquit them, given the atypicality of the conduct. The appeal analyzed by the STJ is from the Federal Public Prosecutor’s Office, which advocated for upholding the sentence.
Case of tax default
The reporting justice for the case was Justice Jorge Mussi. For him, the offense addressed in this specific case requires that the company deduct or charge amounts from a third party and fail to collect the tax for the public coffers, which did not occur in the specific case analyzed by the 5th Panel. According to the justice, the company that sells goods with ICMS embedded in the price and, subsequently, does not pay the tax, failing to pass on to the Tax Authority the amount charged or deducted from a third party, becomes simply in default of its own tax obligation.
Citing an excerpt from the judgment of the TJ-GO, Mussi says that the company did not carry out the so-called tax substitution, nor did it commit fraud to avoid paying the tax. In the reporting justice’s view, it was “patent” that the conduct attributed to the partners was that of failing to collect, within the legal deadline and manner, the ICMS that they had declared to the tax authority, in relation to the company’s own activity that they represented.
Source: Conjur
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