O princípio da anterioridade e a inconstitucionalidade da cobrança do ICMS DIFAL nas operações de circularização de mercadorias no exercício de 2022

Abstract

The Original Constituent, at its time, found that interstate commerce intended for final consumers who are not taxpayers of the tax on circulation of goods and ser- vices would be insignificant in relation to ordinary retail, physically performed in local commercial establishments, bringing provision for the division of the tax only in tran- sactions with goods intended for interstate final consumers between taxpayers. Ho- wever, with the advancement of technology, as of the 2000s, there was an exponen- tial increase in e-commerce, which led to the accumulation of state tax on these tran- sactions in the more industrialized states, undermining the federal pact. In this con- text, the most industrialized states - the north and northeast, mostly - began a plea for the distribution of the tax, which, after several developments, culminated in the issue of Constitutional Amendment 87/2015, which finally established the distribution of ICMS between the states of origin and destination of the goods. However, the new constitutional wording requires complementary legislation to define the matrix rule of incidence of the tax, which, until 2022, did not exist, basing the co-branch of the tax on an infra-legal rule. As expected, the unconstitutionality of the infra-legal provisions that justified the collection of DIFAL was declared and the collection of the tax was conditioned to the issue of complementary legislation. In this context, this legislation was only approved in late 2021 and only published in January 2022, with express mention to the constitutional provision that deals with the nonagesimal anteriority. The states, in their majority, understood that the collection of the tax should not follow the anteriority requirement, since no tax was instituted or increased. However, this paper analyzed the doctrine and jurisprudence of the country, understanding that, effectively, there was the institution of a new tax, through a new legal-tax relationship, which, constitutionally, requires the observance of the principle of anteriority, reaching the conclusion that the collection related to the DIFAL for non taxpayer end consu- mers in the year 2022 is unconstitutional.