The 3rd Section of the Superior Court of Justice in a decision handed down on August 22, 2018, in the judgment of habeas corpus nº. 399,109/SC, understood that the non-payment of ICMS for consecutive months, characterizes the crime of tax misappropriation.

The above-mentioned habeas corpus was against a decision of the Court of Santa Catarina State, which approval the appeal by the Public Prosecutor's Office, in order to remove the sentence of summary acquittal and to determine the continuation of the process for the defendants to answer for the alleged practice of the crime provided in art. 2, II, of Law 8.137/90.

According to the counsel for defense, the non-payment of ICMS in own operations, declared to the Tax Administration, can not characterize the crime of tax misappropriation, because is, in fact, mere tax default, since there is no tax substitution, but there is a direct tax liability of the legal entity. The counsel for defense added that the taxpayer is the legal entity itself although it passes the cost on to consumers, in this way the consumer is not the responsible for the payment of the tax.

The case was judged by the 3rd Section, in view of the need to prevent divergence and to standardize the understanding among the Panels that make up the Third Section, since the Fifth and Sixth Panels have found different solutions for the question.

According to the decisions of the Sixth Panel, it is necessary to distinguish two situations, because if ICMS is charged in own operations, there will be only tax default, on the other hand, if charged by tax substitution, would be the case of incidence of the crime of tax misappropriation.

Otherwise, the Fifth Panel does not make the same distinction, in a way that the lack of payment, in its own operation or by tax substitution, characterizes the crime of tax misappropriation, if proved, of course, the criminal intent.

In order to pacify the understanding among the Panels, for Justice Rogério Schietti Cruz, habeas corpus reporting judge, criminal tutelage is justified because the protected legal good is not individual, since the resources received from the tax give support to meet social needs.

It is important to mention that the reporting judge has indicated four elements for the configuration of the crime of tax misappropriation:

1º) The fact that the agent to record, determine and declare the tax, does not prevent the configuration of the crime;

2º) The active agent of the crime is the taxpayer, and the law does not establish a difference between the taxpayer and the responsible for replacement (tax substitution), therefore, both can be active agent of the crime.

3º) It is necessary to have conscience and desire of not to pay the tax, but the motivation does not matter;

4º) It is necessary to concretize the elements foreseen in the crime, "discounted" or "charged", that is, only those who deduct or charge the tax will respond.

Therefore, according to the understanding established in the habeas corpus nº 399.109/SC, the non-payment of ICMS for consecutive months constitutes the crime of tax misappropriation, because the declaration by the defendant of the tax due is irrelevant to the implementation of the crime.