By 7 votes to 3, the plenary of the Federal Supreme Court (STF) defined as a crime the non-payment of the ICMS declared by the merchant to the state Treasury. The judgment ended yesterday, the 18th.
“The taxpayer who, in a contumacious manner and with intent of appropriation, fails to collect the ICMS charged to the purchaser of the merchandise or service falls under the criminal type of Article 2 (item II) of Law 8.137/1990”.
With this understanding, the Justices of the STF concluded, in this Wednesday’s session, the 18th, the judgment of the Ordinary Appeal in Habeas Corpus (RHC) 163334, filed by the defense of merchants from Santa Catarina denounced by the State Public Prosecutor’s Office (MP-SC) for not having collected the tax.
The judgment began last week, when the majority of the Justices declared in favor of the criminalization of the misappropriation of the tax. The majority current followed the understanding of the rapporteur, Justice Roberto Barroso, for whom the amount of the ICMS charged to the consumer does not form part of the assets of the merchant, who is a mere depositary of this cash inflow which, after being duly offset, must be collected into the public coffers. The Justice, however, stressed that, to characterize the offense, it is necessary to prove the existence of an intention to commit the unlawful act (intent). “It is not a matter of criminalizing default, but of misappropriation. We are addressing illegitimate business conduct”, the Justice summarized.
In this Wednesday’s session, the President of the Court, Justice Dias Toffoli, who had requested to review the case file, also voted with the rapporteur, on the understanding that the failure to collect the tax does not characterize a mere tax default.
For Toffoli, the ICMS does not belong to the taxpayer: it is a mere temporary inflow into their accounting. The Justice made the same caveat as the rapporteur to the effect that, to characterize the offense, one must demonstrate the explicit and contumacious awareness and will of the taxpayer not to fulfill their obligations with the tax authorities.
With the result, the appeal, which sought the dismissal of the criminal action, was denied. According to the Justices, the judge of the case must analyze whether the requirement of intent is present in the specific case.
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Source: STF
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