The (In)compatibility of the Crime of Misappropriation of ICMS Tax and the Principle of Fragmentariness

Abstract

This article examines the legal compatibility of the thesis established by the Brazilian Federal Supreme Court in the judgment of RHC 163.334/SC, which recognized the possibility of criminal liability for the failure to collect self-declared ICMS, equating such conduct to the tax embezzlement crime provided for in article 2, II, of Law 8.137/1990. The research adopts a qualitative methodology, based on doctrinal, legislative, and jurisprudential analysis, with emphasis on the principle of fragmentation of Criminal Law, which requires its application as the last resort. As a result, it is observed that the criminalization of repeated tax delinquency is based on the protection of tax order and free competition, especially concerning the fight against so-called persistent debtors. However, it becomes evident that the presumption of intent and the expansion of criminal jurisdiction to situations of mere nonpayment may violate constitutional guarantees, such as the prohibition of civil imprisonment for debt and the requirement of material offensiveness to the protected legal interest. The study concludes that significant tension remains between the interpretation adopted by the Supreme Court and the political-criminal grounds that limit state punitive action, reinforcing the need for continuous adjustment to prevent distortions in the use of Criminal Law as an instrument of tax collection.