Majority Of STF Justices Understand That The Non-Payment Of Declared ICMS Is Criminal

Author:Mr Henrique Lopes and José Flávio Pacheco
Profession:Koury Lopes Advogados

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...

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