A recent decision by the Superior Court of Justice (STJ) brings relief and an important precedent for partners and executives of companies criminally prosecuted due to the fiscal war between states. The Court, in a recent decision on the merits, ruled that businessmen cannot be penalized by an economic dispute between States - which seek to attract investments by granting benefits not approved by the National Council for Farm Policy (Confaz).
The case analyzed by the court refers to a criminal action against three partners of Cominas Comercial Minas de Baterias for the charge of crime against the tax order. The penalty in this case ranges from two to five years in prison. “A war was left on the taxpayer's shoulders that is not his own and, worse, with criminal cases”, says Heloísa Estellita, lawyer for the partners in the process and professor at the São Paulo School of Law at FGV.

According to experts, the discussion is a matter of legal interpretation. Taxpayers use a benefit authorized by law in a given state - which, for lawyers, is legal. The State that feels harmed interprets that the reduction or suppression of a tax may have occurred, which would characterize a crime against the tax order. For this reason, some finance departments forward representation to the Public Ministry, which can request the opening of a police investigation and, depending on the results, submit a criminal complaint to the Judiciary. Fact that occurred in the case in question.

The entrepreneurs were denounced by the MP of Minas Gerais because they used ICMS credits from tax benefits in Pernambuco, not approved by Confaz. As Minas Gerais does not recognize this benefit, the State understood that the taxpayer would have appropriated undue credit and paid less ICMS. For the MP, the loss for Minas Gerais would have been R $ 21,8 thousand.

As a defense, the partners claimed to be victims of the fiscal war between Minas Gerais and Pernambuco. "The sale was taxed, the selling company had to point out the value of the ICMS on the sale, but then it did not have to pay it in full to the State of Pernambuco", says Heloísa, who recalls that the incentive is still in force.

At STJ, Cominas maintained that the tax credit it took would be legitimate because it comes from a tax benefit granted to the company from Pernambuco by the State. Being legitimate, there could be no talk of suppressing taxes. In addition, there would be no record that the invoices mentioned in the complaint were false. In that sense, there would be no crime.

The rapporteur at STJ, Minister Gurgel de Faria, dismissed the allegation of false document and crime. For him, the use of ICMS credit due to differences in interstate rates, without tax fraud, has no criminal repercussions. The 5th Panel's decision was unanimous for the closure of the criminal action. "The taxpayer who pays the tax in compliance with the constitutional principle of non-cumulativity cannot be charged with the practice of tax crime, as well as maintaining bookkeeping fidelity, within the rules valid within the scope of the respective entities of the Federation," he said.

Source: Valor Econômico (14/01)

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