A inconstitucionalidade do fenômeno da bitributação do ICMS no comércio eletrônico

Abstract

The ICMS is a non-cumulative tax of state competence, representing, in Brazil, the pillar of indirect taxation, since the amount collected by the Member States exceeds that of any other tax, becoming the main source of the Member States' revenue. Due to its importance, the ICMS collection system is a very discussed theme, specially in view of the tax disputes among Member States and the perplexities related to the collection of this tax, since there are different state public treasuries responsible for the collection of the tax in question. Brazil's choice to give Member States the power to impose ICMS has been causing numerous impasses, especially in recent years, with the intensification among them, causing the phenomenon of Tax War. Instigated by the described problem and its impact on trade relations (especially those resulting from electronic commerce), this monograph seeks to assert the unconstitutionality of the ICMS double taxation phenomenon in e-commerce. This study encompasses this issue in the context of federalism by analysis of 1988's Federal Constitution. Without claiming to exhaust the subject, it is proposed to examine the constitutionality of this double taxation which is represented by the Protocol 21/2011. It was understood that the protocol under discussion is riddled with unconstitutional. Constitutional provisions were violated as well as the characteristics of Fiscal Federalism that were hit. The methodology used to develop the contours of this research was descriptive and essentially literature.