Apropriação indébita tributária : estudo sobre a criminalização do não recolhimento do ICMS próprio

Abstract

The theme of this dissertation is the study of tax offenses, delimited to the approach of the so-called crime of misappropriation of taxation, provided for in Article 2, item II, of Law No. 8,137 of 1990. This offense has led, in recent years, interesting debates due to decisions given in the judgments of Habeas Corpus No. 399.199/SC, the Superior Court of Justice, and the Ordinary Appeal in Habeas Corpus No. 163.334/SC, of the Supreme Court. According to the understandings established in the judgments, the agent who ceases to collect from the tax authorities, within the legal period, the Tax on Circulation of Goods and Services - ICMS, derived from own operations, focuses on the practice of the offense provided for in Article 2, item II, of Law No. 8,137 of 1990. Based on this, the research problem presented as a research problem the question about the extent to which the lack of collection of ICMS timely declared in the appropriate guides and related to debt by the taxpayer's own operations can configure the crime provided for in Article 2, item II, of Law No. 8,137 of 1990 in the light of the offense in criminal law. After the study was carried out based on the questioning presented, it was concluded that the conduct considered criminal because of the decisions studied is materially unconstitutional, since it does not carry with it any offense to the protected property. First, because there is no need for protection of the legal good by criminal law, which is circumstantial to the offence. Second, because following the rules of tax law, there is no kind of appropriation by the taxpayer that ceases to collect to the public coffers, within the legal period, the ICMS duly declared and coming from own operations. Thus, the conduct criminalized through the decisions of the Superior Courts is materially invalid, for not presenting any kind of offense to the legal good that is intended to protect the criminal norm.