A(in)validade da glosa dos créditos do ICMS incidente em operações interestaduais em virtude da concessão unilateral de benefícios fiscais: uma análise dialética

Abstract

The Federal Constitution of 1988, when assigning the states and the Federal District the law-making power to createTax on the Circulation of Goods and on Services of Interstate and Intermunicipal Transportation and Communication, the ICMS, accordingto Article 155, item II, of the Law of Laws,expressly established that the aforementioned tax should be charged in a noncumulative way, "offsetting what is due in each operation concerning the circulation of goods or services againstthe amount charged in previousoperations by the same or another State or the Federal District"(Article 155, Paragraph 2, Item I,of the Constitution).On the other hand, the Federal Constitution also determined that the "offsettingscheme of the tax", aforementioned, should be disciplined by a supplementary law, as well as the wayby, "through deliberation by the states and the Federal District, tax exemptions, tax breaksand tax benefits willbe granted and repealed", according toArticle 155, paragraph XII, letters" c "and" g "of the Constitution.In light of these constitutional rulesandthe content of SupplementaryLaw No. 24/1975 (in particular Articles 1 and 8), it would have been receptedby the Federal Constitution of 1988 as a supplementarylaw of national character mentioned in article 155, item XII, subitem "g" of the Constitution (Article 34, paragraph 5, of the Act of Temporary Constitutional Provisions),ther is a lot ofdiscussion about the possibility of use of credits related to ICMS tax levied on interstate operation when,in origin, the shipment is reachedby a tax benefitgranted unilaterally by the originary State, a circumstance that brings the notorious "tax war" on the ICMS.Beforethis situation, we will try to, with this work, detailthe main rules and principles relating to the materiality of the ICMS and its noncumulative mandatory feature, analyzing also the waysby which the tax benefits related to the aforementioned tax should be granted and what is the consequences in the event of irregular granting of tax benefits relating to ICMS. Establishedthese premises, we will seek to verify the legal possibility of ICMS credit use in interstate transactions covered by the granting of illegal tax breaks, exposing the various theories and opinions existing on the subject to,in the end,we join to one of them, exposing the practical consequences thereof, all based on deductive and dialectical methods.These are the aimsto be pursued withthis job