A exigência do ICMS carga líquida pelo Estado do Ceará - uma análise à luz dos princípios constitucionais

Abstract

The State of Ceará, unsatisfied with the legal framework adopted by the Brazilian Federal Constitution of 1988, has established rules which create the collection of an additional ICMS tax by the State Revenue. However the aforementioned “Tax War” takes different and broader senses today, since the Federative units make use of new legal tools with the sole and common scope of raising the amount of their respective tax revenues. In addition, the mentioned discussion over the non partition of the ICMS in interstate operations, whose products were destined to final non-contributor consumers relates to the “Tax War”, setting an atmosphere of competition among the producer and consumer States. In such context, the State of Ceará, aiming at the reduction of the tax unbalance in these operations, legislates the creation of an additional ICMS correspondent to a liquid tax burden as states article 11 of the 14.237/2008 Law. Furthermore, in 2011, it had been settled among many States the ICMS 21 Protocol, having the specific purpose of taxing virtual trade operations. Considering the resemblances between the State legal devices and the Protocol, it is relevant to analyze these legal acts based on constitutional principles. In this way it is possible to assert that the creation and collection of the additional ICSM tax by Ceará State is in direct contradiction of express constitutional rules, generating a situation of double taxation, which implies abusive tax burden, harmful both to the contributor and the final consumer. At last, it is possible to assess the need of a new tax framework to collect the ICMS, one which distributes equally its revenues among the Federative units, contributing to the reduction of regional inequalities in the country.