By Mariana Martins and Marcelo Blecher

On December 18th, the STF Plenary, by 7 votes to 3, decided that the taxpayer who, in a contumacious manner and with intent to appropriate, fails to collect the ICMS charged from the purchaser of the goods or service falls within the criminal type of art. 2, II, of Law 8,137/1990 (crime against the tax order).

In practical terms, what changes with this decision is the way in which the irregularity is treated by the authorities. Until the STF adopted this understanding, the taxpayer who failed to pay the declared ICMS could only be subject to a judicial collection process.

It is important to highlight that, according to the understanding adopted by the Rapporteur Min. Roberto Barroso, “it is not someone who failed to pay ICMS at a time of difficulty, or skipped a month, two months, or even three months. It is the habitual debtor, who does not pay almost as a business strategy, which gives him a competitive advantage that allows him to sell cheaper than others, inducing others to the same criminal strategy”.

Based on this precedent, the taxpayer who is classified as a “contumacious debtor” – that is, who habitually declares and fails to collect ICMS – may be criminally prosecuted for not collecting the declared ICMS, which ends up creating a scenario of legal uncertainty and gives rise to uncertainty about under what conditions, in fact, criminal proceedings may be instituted in the event that the taxpayer fails to collect the ICMS due.

Although the appeal in question deals with a specific case and has not been judged in the general repercussion system, which would oblige the other bodies of the Judiciary to adopt this same understanding, it is certain that it is an important milestone in jurisprudence, which may - and should - indirectly influence the understanding that has been adopted by the other Courts on the matter.

The Mazzucco & Mello Advogados tax team is available to provide any clarification on this topic.