A inconstitucionalidade do convênio ICMS 42/2016 por desrespeito ao Princípio da anterioridade: uma análise da ADI 5635 e da jurisprudência estadual aplicável

Abstract

This work is committed to evaluating the so-called ICMS legal underpinnings, bearing in mind its way of indirectly increasing tax burden on taxpayers. Furthermore, it's our intention to shed lights on how tax precedence might be precisely viewed by legislators. As a practical example, we work on the ICMS 42/2016 Agreement, which is associated to a sort of enjoyment as for ICMS incentives or tax benefits regarding 10% deposit over benefits experienced by taxpayers into a state fund tempted to economic development or fiscal balance, mainly conceived as way of financially reorganizing states, or even reduce prompted tax amount within same proportion, effectively causing sameness tax effect. This work was primarily thought to be based on a descriptive bibliographical analysis, by examining key works that argue for the lack of constitutionality as for this charge imposed both by states and Federal District. Therefore, counting on the reflection conducted throughout this work, we may conclude as the entire misleading role played by ICMS 42/2016 Agreement. As executive summary, apart from the discussion on the overstepping of federal competence, the legislative decrees authorized by ICMS 42/2016 Agreement disrespect fundamental principles such as precedence and legal certainty, and improperly link tax revenues to funds regard specific purposes.