Inconstitucionalidade da substituição tributária para frente no ICMS

Abstract

This research aims to study the phenomenon of forward tax replacement, applied to the ICMS. For this, the comparison is made between the rules governing such institute and the constitutional principles of legal certainty, the typicality tax, no confiscation, no cumulativity and tax practicability. The importance of the study is based on the fact that the forward tax replacement is, currently, an instrument widely used in the operation of tax collection. Through the confrontation between the legal institution in question and the above mentioned constitutional tax principles, it was concluded that the forward tax replacement is part of the system of positive law, even when at odds with constitutional norms that should function as the foundation for validity. As a result, the position must be taken in the sense that the normative validity of the concept is separated from the existence of rule of law. Thus, invalid norms are in the system, even if they are in disagreement with the material standards are hierarchically superior to them, in order to make possible the construction in the sense that in the ICMS, the forward tax substitution presents itself as an unconstitutional institute, though it is still used