On December 18, 2019, the Federal Supreme Court (“STF”), sitting en banc on judgment of the Ordinary Appeal in Habeas Corpus – “RHC” no. 163.334, ruled as follows:
"A taxpayer who, persistently and with the intention of misappropriation, fails to pay ICMS charged from the purchaser of merchandise or services is guilty of the crime stipulated in art. 2, II, of Law no. 8.137/1990"
In fact, in the view of the reporting judge, Minister Roberto Barroso, whose opinion was endorsed by a majority of the Court, the amount charged by way of ICMS from the consumer (actual taxpayer) does not form part of the assets of the tradesman/vendor (legal taxpayer), since it only passes through the latter’s account pending its transfer to the public treasury.
In this respect, when it intentionally fails to transfer the declared amounts to the State Treasury, the taxpayer is guilty not only of non-payment of tax, but also of a veritable “misappropriation”.
The Minister emphasized, however, that, in order to constitute a crime, it is necessary to prove that the taxpayer acted with the intention of committing the crime, i.e. with fraudulent intent.
It is also clear that, according to the ruling of the STF, in order for the conduct in the specific case to be considered a crime, the taxpayer must also have the economic resources to make the transfer. Otherwise, the conduct does not constitute a crime, in view of the impossibility of acting in a different manner.
It should be noted that, as a general rule, the mere failure to pay tax is not a crime. Here reference may be made to the view confirmed by the STF itself through Binding Precedent no. 25 – which declared illegal the imprisonment of an unjust depositary – and also to the American Convention on Human Rights, also known as the Pact of San José, Costa Rica, of which Brazil is a signatory, which rejects the punishment of imprisonment for debt.
Therefore, in strict accordance with the law, the new concept established by the STF materializes only when, in the concrete case, there are present, apart from willful intent, the economic conditions necessary for the due payment of the amounts credited by way of ICMS, thereby making possible the characterization not only of non-payment of tax, but also of misappropriation.
Moreover, it is important to emphasize the third requirement established by the Supreme Court, in RHC no. 163.334, for characterization of the crime, consisting of the persistent conduct on the part of the taxpayer.
Therefore, in accordance with the ruling of the Supreme Court, in order to constitute a crime against the tax system in these circumstances, three requirements must be met, namely: 1) the taxpayer must fail to transfer to the public treasury the ICMS declared and charged from the consumer of the merchandise or service; 2) the taxpayer must act with the intention to misappropriate the amount of tax; and 3) the taxpayer must act in a persistent manner.
The team of Stüssi-Neves Advogados is at your disposal to provide any additional clarification on this matter.
Beatriz Valle R. Santana and Arthur T. Stüssi
Associate lawyer and Partner in the Tax Area – Rio de Janeiro
beatrizvalle@stussi-neves.com
arthurstussi@stussi-neves.com
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