A retroatividade da legislação tributária mais benéfica ao contribuinte: análise da aplicação de multa em obrigação acessória extinta pelo Decreto Estadual n° 33.322/17

Abstract

This paper analyzes the occurrence of State Decree nº 33.322 / 17 in the light of the principle of non-retroactivity of the tax law, considering its applicability, and investigating its exceptionality. This Decree brought additions to the ICMS Regulation - Tax on the circulation of goods and services (approved by Decree nº 19.714, of July 10, 2003), changes that imply changes with regard to the retroactivity institute. In the Decree there is an express provision that the Digital Tax Bookkeeping - EFD, Microenterprises and Small Businesses opting for Simples Nacional are exempted from the obligation to deliver the Digital Taxpayer and even if taxpayers who do not have tax transactions in the month and credit balance to use in the subsequent verification period are exempted from the obligation to send the digital file of the Declaration of Economic-Tax Information - DIEF, the delivery of the ICMS Tax Substitution Information and Calculation Guide - GIA-ST, and also of EFD. The question that arises as a research problem, therefore, is whether the waiver of compliance with such ancillary obligations related to ICMS retroage to benefit taxpayers whose facts giving rise to the respective ancillary obligations occurred before the Decree was issued, since the nonsubmission of such documents constituted tax infractions subject to the fine. From this perspective, this research, qualified as theoretical and exploratory, carried out a documentary survey of the legal rules applied to the case and a bibliographic review on the matter, especially on the principles of the non-retroactivity of tax law and legality, in order to provide answers to the question formulated.