A (in)constitucionalidade da prisão do devedor de ICMS declarado e não recolhido: análise dos reflexos jurídicos com a fixação da tese no RHC 163.334/SC à luz do garantismo sancionador do Direito Tributário

Abstract

The purpose of this academic research is to understand whether or not there is constitutionality in the imprisonment of the ICMS debtor for non-payment of the declared tax. Through the hypothetical-deductive method, the object of the research is to analyze the constitutional, criminal, and tributary aspects of the practice of the crime of tax embezzlement of values under ICMS, being analyzed from the perspective of the theory of sanctioning guaranteeism. The research is explanatory, since, through the documentary analysis of doctrinal books, scientific articles, and jurisprudence of the national courts, it focuses on understanding the tax and economic aspects of the tax on the circulation of goods and services, as well as the particularities of the crime of appropriation tax overpayment, to then understand the misinterpretation that led the Supreme Court to fix the thesis that legitimized the arrest for ICMS debt. After an entire exposition of reasons relevant to the law and doctrine, we understand that the thesis set out in RHC 163.334/SC of the Supreme Court needs to be overcome as it represents a clear affront to constitutional guarantees and precepts by declaring that the mere default of the tribute results in the criminalization of the ICMS taxpayer. Therefore, given the importance of precedents in Brazilian law, it is essential that the Court review the decision, considering that it carries unconstitutional content since the Federal Constitution prohibits imprisonment for debt, and a whole legal uncertainty is generated because the State ends up using the weight of criminal law as a tool for collecting taxes, disrespecting basic rights and principles of criminal and tax law.