O direito à compensação do ICMS recolhido sobre prestação de serviço de comunicação em relação à qual houve inadimplência absoluta do usuário: uma análise da violação ao fato gerador e ao princípio da não cumulatividade do imposto

Abstract

This work intends to analyze the right of the company providing the compensation or refund of the ICMS collected on the provision of communication services in relation to which there was an absolute default by the user. The taxpayer claims the compensa-tion of the tax undue with fulcrum in art. 165, I and 166 of the CTN, claiming that the user's absolute default is able to violate the RMIT's material aspect of the tax with regard to the onerosity of the services (art. 2, III of LC 87/96) and to cancel the occur-rence of the taxable event due to the retroactive effects of the contractual resolution. Furthermore, the ICMS is an indirect tax, so the burden of exhaustion must be borne by the end user of the service, a taxpayer in fact, however, the economic repercussion of the tax is prevented due to its default, consequently causing violation of the consti-tutional tax principle of non-cumulative ICMS (art. 155, §2nd, item I, CF / 1988). Under the terms of art. 118, CTN, the definition of the enforceable fact, in the case of ICMS-Communication, the effective provision of onerous services, is interpreted objectively, abstracting the effectiveness and validity of the underlying legal transactions. Default does not eliminate the costly nature inherent in the nature of service provision con-tracts. The debtor remains obliged in relation to the creditor, responding for the damage caused as a result of contractual civil liability (art. 389, CC). In addition, the termination of the contract does not nullify the occurrence of the taxable event and does not ope-rate retroactive effects, due to the nature of the contracts for continuous execution, and the service provided is of the instantaneous type. Finally, the tax principle of non-cu-mulativeness, whose canons reside in the constitution of the “tax credit” referring to previous entry operations and their compensation with the ICMS due in the provision of communication services, and has as main objective the elimination of the cascade effect of taxation, does not assume the effectiveness of the economic repercussion of the exaction during the cycle. The right to pass on the burden of exaction between the company and the taxpayer in fact lacks a legal provision (legal repercussion). The eco-nomic repercussion of the tax is a concept foreign to Tax Law, essentially dependent on market issues, and has no causal relationship with that principle. The default does not prevent the constitution of the “tax credit” or its compensation with the ICMS- Communication due. The Tax Authorities do not require the effective payment of ICMS due on the entry transactions for the purposes of calculating the "tax credits", nor the performance of contractual obligations agreed between the taxpayers and their innu-merable final consumers, for the purpose of effecting the non-cumulative effect. In short, the State should not bear the burden of unsuccessful legal transactions between private individuals, since the risks are inherent to private business. It remains for the company, authorizing the communication services, taxpayer, to collect the amount highlighted on the invoice and, in the event of an absolute default on the part of the final consumer, to resort to the Judiciary in search of adequate executive judicial pro-tection, with the aim of repairing the damage suffered.