“Apropriação indébita tributária” e o problema da aplicabilidade do art. 2°, II da lei nº 8.137/1990 ao ICMS próprio

Abstract

The general objective of this investigation is to analyze the possible framework of non-collection within the period, of the ICMS itself, duly determined and declared by the taxpayer, to the criminal type provided for in Art. 2, II of Law 8.137/90. As specific objectives, we sought to understand the process of criminalization of tax offenses; analyze, under the most diverse aspects, the criminal typification contained in Art. 2, II of Law 8.137/90; assimilate relevant concepts and the systematics implemented to ICMS; examine the understanding adopted by the Courts in relation to the subject. The methodology used in the present work is essentially based on bibliographic, jurisprudential and legislative research. In addition, a dialectical analysis of the Constitution and the laws on the matter will be made, tied to an examination of decisions related to the subject, such as HC 309.109/SC, judged by the STJ and rhc 163.334/SC, in which the Supreme Court issued its understanding, including establishing the sis about the issue.