The Plenary Session of the Supreme Federal Court (STF) formed a majority, last Wednesday (18), to consider the non-payment of declared ICMS by the taxpayer to the state Treasury as criminal. The final score was 7 votes to 3.
Justices Dias Toffoli, Luis Roberto Barroso, Alexandre de Moraes, Luiz Fux, Edson Fachin, Rosa Weber and Cármen Lúcia voted in favor of criminalization, comparing it to a misappropriation. Gilmar Mendes guided the dissenting vote, followed by Ricardo Lewandowski and Marco Aurélio, claiming that the non-payment of the tax is a mere default.
The discussion reached the Supreme Court due to a case involving two businessmen from Santa Catarina who declared ICMS due on sale transactions but failed to pay the tax. For this reason, they were indicted by the state’s prosecutor with criminal charges against the tax order (Law No. 8,137 / 1990).
The STF's decision for criminalization is valid only for the specific case of Santa Catarina but may influence future trials in lower courts. The Court, in addition, highlighted the necessity to distinguished between cases in which the non-payment of the declared ICMS is intentional or not, what will be clearer with the publication of the decision.
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