Critérios de validade no aproveitamento de créditos do ICMS decorrentes da guerra fiscal utilizados pelos tribunais administrativos: um estudo jurimétrico

Abstract

The tax war is a widely discussed topic when the subject is the ICMS, as it names the existing competition between the FUs, which, with the objective of attracting investments, grant tax incentives unilaterally, that is, without the approval of Confaz. In a macro scenario, involving interstate operations, the granting of these incentives not only harms the tax authorities with the non-collection of the tax that would be originally due by the company, but also because there are, through operations, based on the principle of non-cumulativeness, transfer of credits of ICMS to be deducted by the recipients of the operations. Aiming to discourage the tax war, the states promote the disallowance of these irregular credits, initiating administrative discussions that are not usually addressed in the academic environment when talking about state courts. Thinking about it, this research sought to answer: what are the validity criteria of ICMS credits involving the tax war in decisions handed down by the State Administrative Courts? Using a mixed methodology (jurimetry and normative systems), 103 judgments were analyzed, extracted from five administrative courts, to identify these validity criteria and later, together with nine other variables extracted from the literature, to outline an overview of the functioning of administrative litigation related to the ICMS. The results point to five attributes considered as the main validation criteria for these credits: validation of incentives, principle of non-cumulativeness/normative, good faith of the taxpayer regarding the regularity of the operation, presentation of evidence of non-use of the benefit granted in an irregular manner and ZFM/Amazonas, the most relevant of which is validation, demonstrating the practical effects of Complementary Law 160/2017 and Agreement 190/2017, rules issued for this purpose. In addition, it mapped data such as the duration of the processes, types of incentives granted and their respective UF, presence of tax rules in addition to the RICMS in the decision, taxpayer success rates and information about the applicant, rapporteur, casting vote and value of credit, shedding light on issues hitherto little known in terms of empirical research with this data source.