A guerra fiscal do ICMS e a consequente incerteza jurídica

Costa, Leonardo de Andrade
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This paper aims to present the phenomenon of Tax War on the ICMS due to the grant of tax benefits without support in the Agreement. Over the past few years, states have increasingly granted such benefits, which led to a large number of lawsuits in the Supreme Court questioning its constitutionality. To pacify the understanding in the sense that when such benefits are not approved by the unanimous vote of members in CONFAZ would be unconstitutional, the Supreme Court issued a Proposal for a Binding Precedent nº 69. This essay shows the effects that this Binding Precedent will cause if it would be approved and if it would be possible to grant the modulation of its effects as a way to ensure greater legal certainty. Then, an approach is done on the Law nº 3.394/2000 and the Decree nº 26.273/2000 of the State of Rio de Janeiro, which are rules that granted remission of interest and penalties related to the benefits accumulated during the validity of Law nº 2.273/1994, which was later declared unconstitutional by the Supreme Court. This work also deals with the legitimacy of the prosecutor to file a public civil action in face of the deal that granted tax benefits. Finally, we present the Agreement ICMS 70/2014 in its attempt to minimize the impact of the declaration of unconstitutionality of benefits on taxpayers and the obstacles that exist to achieve this goal.

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