O ICMS e a remessa de bens no agronegócio

Abstract

The purpose of this study is to consider, without the desire to exhaust the theme, the theme related to the transfer of goods involving establishments belonging to the same taxpayer in the event of the incidence of ICMS, prescribed in the Federal Constitution, taking into account, at most, to a possible change in the current understanding. First, a brief exposition of the normative evolution of the materiality of the tax was carried out, demonstrating that, since the edition of the previous ICM in the Brazilian legal system, the material criterion still remains firm in the existence of an operation referring to the circulation of goods, conceived by through a legal transaction through which the ownership of the goods is transferred to another. Furthermore, it remains asserted that, depending on the location of the establishment, there may be a problem of inability to collect, which gave rise to several jurists to support a different legal and tax treatment, pleading for the incidence of ICMS from a certain point of view of Brazilian fiscal federalism. Finally, based on the study carried out, the unconstitutionality of the requirement of the tax in question levied on operations of mere remittance of goods and/or goods destined for the same taxpayer was attested, in addition to presenting possible solutions that aim to remedy any injustices that may arise occur based on this controversial understanding.