A impossibilidade de condicionar a fruição de benefícios fiscais previamente concedidos ao recolhimento para fundos criados com base no convênio ICMS 42/2016

Abstract

This paper addresses the complex interaction between taxation, the tax system, and fiscal incentives in the Brazilian context. It begins with a conceptual analysis of the tax, exploring its fiscal, extrafiscal, and parafiscal functions. Next, the principles of tax law are discussed, with a focus on the principle of legal certainty. The research progresses to examine fiscal incentives, detailing different modalities such as reduced rates, presumptive or granted credits, exemption, and amnesty, illustrated with the Programa de Desenvolvimento do Estado de Pernambuco (PRODEPE). The Convênio ICMS 42/2016 is analyzed, focusing on the norms of CONFAZ and controversies regarding its application, especially concerning the prohibition of revenue linkage and non-compliance with the non-cumulativity of ICMS. Finally, benefits granted before the establishment of the Fundo Estadual de Equilíbrio Fiscal (FEEF) are explored in light of Article 178 of the CTN and STF's Summary 544. It is concluded that it is not possible to condition the enjoyment of these benefits, previously granted, on payment to the FEEF.