Failing to collect ICMS and pass it on to the public treasury may constitute the crime provided for in Article 2, item II, of Law 8.137/90, when the agent appropriates the amount corresponding to the tax instead of remitting it to the tax authorities.
The distinction between mere tax default and the commission of the offense, which is not tied to whether or not the failure to remit the ICMS due was clandestine, must be assessed by the simple intent (dolo) to appropriate the respective amounts, which is identified by the factual circumstances of each specific case.
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With this understanding, the Third Panel of the Superior Court of Justice (STJ) denied habeas corpus to two businessmen who argued that the failure to remit ICMS on their own operations, duly declared to the tax authorities, would not constitute a crime, but merely tax default.
“The fact is typified and, in principle, there is no cause excluding unlawfulness, and it must be stressed that the intent to appropriate must be recognized on the basis of the evidentiary substrate obtained after the criminal proceedings,” reasoned the reporting justice in the case, Justice Rogerio Schietti Cruz.
In the case analyzed, the petitioners failed to remit, within the legal deadline, in their capacity as passive subjects of the tax obligation, the amount of ICMS charged to the acquirer that followed them in the production chain.
The Court of Justice of Santa Catarina found the crime provided for in Article 2, item II, of Law 8.137/90, commonly called tax misappropriation, to be established, and overturned the judgment that had summarily acquitted the defendants.
At the STJ, Rogerio Schietti justified the need for the panel to analyze the situation in view of differing decisions in the Fifth and Sixth Panels in cases of ICMS levied on a taxpayer’s own operations and in cases of tax substitution.
The defense argued that formal typicality would be lacking in the case of failure to remit one’s own ICMS, insofar as there would be no tax substitution, but rather direct passive tax liability of the legal entity.
Failure to remit ICMS – essential aspects
The justice highlighted four essential aspects for the commission of the crime. The first is that the fact that the agent records, assesses, and declares the tax due in its own form or in tax ledgers does not preclude the commission of the offense, “since this does not presuppose clandestinity.”
The second and third, Schietti argued, is that for the offense to be characterized, its perpetrator must be the agent who holds the status of passive subject of the tax obligation. Not just any passive subject, but solely the one who withholds or charges the tax.
And the fourth and final aspect is that the conduct be directed by the intent to appropriate the tax due (general subjective requirement) that should have been remitted to the tax authorities, a circumstance to be drawn from the facts inherent to each specific case.
Source: STJ
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