According to a December STF decision, non-payment of ICMS on a regular basis may constitute a crime.

One of the most important - and worrying, in the opinion of tax experts - precedents signed in 2019 by the Federal Supreme Court (STF) may have consequences in 2020. Lawyers await the publication of the judgment of the case in which the plenary allowed the criminalization of non-payment of ICMS , and add that the absence of a definition of what constitutes a persistent debtor can harm taxpayers.

The precedent was finalized in December last year. The ministers decided that non-payment of ICMS in a persistent way and with intent constitutes a crime, a thesis that allows company partners to be criminally liable for non-collection of the tax.

Lawyers who acted in the case, however, point out that although the judgment of the case has not been published, the Supreme Court may have left a series of loose ends, which could lead to a motion for clarification. Specialists who defended the parties and the amici curiae in the process point out, for example, that although the thesis signed by the STF plenary cites the term persistent debtor, the concept still does not have a definition, and the magistrates did not give any indication that they intended to fix the beacons.

Proof of the size of the problem is in the appeal itself analyzed by the Supreme, which involves a couple of businessmen from Santa Catarina who stopped paying ICMS for eight months between 2008 and 2010. With correction and fine, the amount owed by taxpayers is just over R$ 30 thousand, and, for the lawyers of the parties, the thesis signed by the Supreme Court could not be applied to the specific case. 

The situation can put the Supreme Court at a crossroads: not defining the concept of persistent debtor can cause thousands of taxpayers to be criminally prosecuted. Addressing the issue, on the other hand, could cause the STF to be criticized for allegedly legislating, mainly because bills are being processed in Congress with the intention of defining the concept of persistent debtor.

Another issue that must be raised in embargoes is the possibility of modulating the effects of the decision that made the non-payment of ICMS a crime. For the parties, it would be necessary for the understanding to be valid "forward", that is, only after the judgment of the STF on the subject. 

seven to three

The discussion on the criminalization of non-payment of ICMS is contained in RHC 163334, whose rapporteur was Minister Luis Roberto Barroso. The process involves the partners of a children's clothing factory in Brusque (SC), who failed to collect ICMS for eight months and were denounced by the state Public Ministry.

The case reached the STF after the Superior Court of Justice (STJ) considered that there was, in the specific case, the crime of tax misappropriation. The rapporteur of the case, Minister Rogério Schietti, understood that even if, as in the specific case, the ICMS has been declared, the non-payment of the tribute can give rise to punishment.

In the STF, the trial was held on December 12 and 18. By seven votes to three, the thesis was defined that “the taxpayer who, persistently and with intent to appropriate, fails to collect the ICMS charged from the purchaser of the goods or service is subject to the criminal offense of art. 2, II, of Law No. 8,137/1990”. The provision defines that it is a crime “to fail to collect, within the legal period, a tax or social contribution amount, discounted or collected, as a passive subject of obligation and that should be collected from the public coffers”.

In terms of merit, ministers Gilmar Mendes, Ricardo Lewandowski and Marco Aurélio were defeated. The latter was also unsuccessful in relation to the thesis, claiming that it could not be applied to the specific case.

“The thesis leads to the provision, and not to the dismissal, of habeas corpus. […] The thesis requires intent, it requires misappropriation, and that is not what the Public Ministry of the State of Santa Catarina narrated”, said the minister on December 18

Judiciary X Legislative

Despite considering the STF's view less restrictive compared to the position taken by the STJ, since there is mention of the terms intent and persistent debtor, tax experts point out that, even with the publication of the judgment, some matters may be uncovered.

According to the lawyer of one of the parties to the process, Igor Mauler Santiago, it may be necessary to request that the established thesis is not applied to the specific case and that the present concepts of the thesis are clarified. “What is contumacious and what is specific intent? Since Supremo took this path, it is necessary to define these criteria”, he said.

Lawyer Odel Mikael Jean Antum, who defends one of the amici curiae of the RHC, the National Union of Telephone and Cellular and Personal Service Companies, points out that the requirement of willful misconduct or default must be proven in each case by the Public Prosecutor's Office from now on. front. He also points out the role of Congress in relation to the definition of persistent debtor. “It would not be up to the Supreme Court to make that kind of conclusion. This conclusion is legislative,” he said.

The matter is also under discussion in the Chamber of Deputies, through the Bill (PL) 1.646/19. The proposal, which awaits the opinion of the special commission appointed to analyze the matter, considers the existence of debts with an amount equal to or greater than R$ 15 million as “substantial and repeated non-payment of taxes”.

In the absence of a definition of the matter – either by the STF or the Legislature – Santiago believes that the analysis of what constitutes a persistent debtor will be carried out on a case-by-case basis by the Judiciary. “Over the years, jurisprudence will be established in the courts, and until then many people will be denounced and sentenced,” he said.

On the subject, public defender Thiago Yukio Guenka Campos, who defended the other defendant in RHC 163334, cites a survey carried out by the entity in cases analyzed by the Santa Catarina Court of Justice. According to the survey, the number of criminal cases for non-payment of ICMS jumped from 93 in 2015 to 275 in 2019, representing a growth of 196%.

In addition, between 2018 and 2019, of the 462 criminal cases analyzed by the Santa Catarina court, acquittal was determined in 0.64% of the cases. In 90,90% there was a criminal conviction, while in 8,22% cases there was a statute of limitations.

Campos points out two other issues that can be addressed in motions for clarification to RHC 163334: the fact that the intent is not characterized in the specific case and the need to modify the effects of the decision. For him, it would be necessary for the Supreme Court's thesis to be valid only for cases subsequent to the definition of the criterion by the Court.

Source: Bárbara Mengardo via Jota.