Regra-matriz de responsabilidade e regra-matriz de substituição tributária no ICMS

Abstract

This research aims to deepen the analysis of the language of legal norms related to liability and tax substitution under the aegis of the General Theory of Law. We use the theory of the matrix-rule of incidence as part of the scientific philosophical method called Logical-Semantic-Constructivism to demonstrate the possible coexistence of multiple subjects in passive subjection, inherent in distinct juridical relations, which modulate the behavior of the taxpayer and, in other instances, the substitute and the legal tax liable, obliging them to contribute to the fulfillment of the tax obligation. In order to reach logical conclusions regarding the juridical relations that gravitate and are related to tax payment, firstly we analyze the implicational hypothesisconsequence relation and the aspects that involve the tax legal relation. Once the contours of this relation are delimited, we proceed to the analysis of the juridical nature of the rules of tax responsibility and substitution in order to establish the necessary premises to identify the structure of its matrix-rules, essential to the understanding of the legal phenomenon of positive law propositions arising from licit and illicit acts, including those that trigger business succession, disregard of legal personality and attribution of tax responsibility among members of the same economic group. One of the epistemological cuts to delimit the object under investigation aimed at analyzing the passive subjection in the mercantile operations of the ICMS in the systems of tax substitution “backward” and “forward”. In this case, unchallenged by controversies regarding its constitutionality in reason that no advance payment of the tax is required, the controversy related to the principle of non-cumulativeness remains controversial - a controversy that we will analyze from the perspective of the constructivist methodology - since the tax authorities and jurisprudence do not recognize the right of credit in the acquisition of goods in the deferral regime, based only on extra-legal arguments. In the tax substitution “forward”, most of the Supreme Federal Court (STF) ministers recognized the possibility of the taxpayer claiming restitution when the actual tax base (of the tax legal fact) is less than of that presumed, but the doubt persists in relation to the legal right of the tax authorities in levied complementary tax when the actual tax base is higher, as well as the modulation of the effects of the decision - still pending judgment in the STF