A inconstitucionalidade da cobrança do ICMS pelo diferencial de alíquota interestadual em operação com consumidor final: uma análise das decisões do Supremo Tribunal Federal e da lei complementar nº 190/2022

Abstract

This undergraduate thesis analyzes the unconstitutionality of ICMS collection by Interstate Rate Differential (DIFAL) on operations whose recipient is final consumer. The relevance emerges as one realizes that these operations are carried out by e-commerce, enhanced by the mass technology of the modern world. The decisions of the Federal Supreme Court of Justice about the theme will be critically interpreted, comparing it between themselves and between others Court manifestations regarding any final recipient, being or not taxpayer of ICMS. As a result of the study, it was concluded that general rules issued by the Complementary Law were equally necessary regardless of whether or not the final recipient was a taxpayer. Moreover, the decision to modulate effects on declaration of unconstitutionality contained in the ADI nº 5.469 and in the RE nº 1.287.019 was examined, weaving considerations about it’s impact. Lastly, suggestions to reach the restitution of tax overpayment and to improve the treatment of ICMS rate differential was developed. For the study, the critical-dialectical methodology with a qualitative scope and neoconstitutionalism as a theoretical framework was used, with a purpose to offer beacons not only to interpret and criticize the systematization of DIFAL and its compatibility with the constitutional system, but also to analyze the jurisprudential manifestation of the Supreme Court.