Brazilian Superior Court and the new stance regarding the constitution of a crime for cases of non-payment of ICMS due in an entity’s own operations

The Sixth Panel of the Superior Court of Justice (STJ) understood, in the judgement of AgRg in the Special Appeal No. 1.867.109 – SC (2020/0063833-1), that the failure to pay the Tax on Circulation of Goods and Services (ICMS) due in an entity’s own operations, when not committed with contumacy, does not constitute a crime against the tax order, as established in Article 2, item II of Law No. 8.137/1990.

In the specific case referred to above, the Court recognized the atypical nature of the allegedly criminal conduct and, consequently, determined for the acquittal of the defendant. This is due to the fact that the ICMS was not paid only in the month of November 2016, which would not characterize the necessary contumacy for the occurrence of a crime.

The understanding of the Superior Court of Justice is in line with the position of the Supreme Federal Court (STF) in RHC No. 163.334, of December 2019, which established as a legal thesis  that the crime of Article 2, item II, of Law No. 8,137/90 is configured when the taxpayer, with contumacy and with willful intent of appropriation, fails to collect the ICMS charged to the buyer of goods or services.

Thus, the understanding of the Brazilian Superior Courts is aligned in the sense that the non-payment of ICMS in an entity’s own operations is considered a crime, according to HC No. 399.109, judged by the Third Section of the STJ, but the elements of contumacy and willful intent of appropriation must necessarily be demonstrated.