O ICMS: importação após a edição da emenda constitucional nº 33/2001

Abstract

This work aims to study the ICMS (a kind of Value-Added Tax) on Importation (ICMSimportation), which is set in Art. 155, II, §2º, IX, “a” of the Brazilian Constitution of 1988, specifically, after the edition of the Constitutional Amendment nº 33/2001, that intends to grant to the non-taxpayers of ICMS the passive entry of the referred tax, differing of the current jurisprudence of the Supreme Federal Court (summary nº 660, still in force), as well as the principle of non–cumulative and the standard rule of tax’s incidence of the ICMS. The present work will show that the Constitutional Amendment nº 33/2001 has just created a new taxpayer of ICMS-Importation, which is the unusual taxpayer, not existing, in any event, the possibility of the non-taxpayer be the taxable of the aforementioned impost. Although the fact that the majority of national courts embed the non-taxpayer in personal criteria of ICMSImportation, it’s important to notice that, in the future, in many Brazilian states, the absence of state laws that would create the material criteria of the ICMS after the advent of the CA nº 33/2001, considering that the aftermost constitucionalization of laws created before the CA nº 33/2001 isn’t possible, since these laws were considered unconstitutional prior to the issue of allusive amendment to the Constitution. For the execution of this work will be consulted various academic works in the field of Law and previous judicial decisions that confirm the understanding advocated. The challenge of this academic work is to introduce the importance and originality of the topic, as well as the ignorance of the subject by the great majority; being unknown or at least poorly and mistakenly explored.