Post by firoj1919 on Feb 22, 2024 6:49:25 GMT -5
Who argued that there was no supervening constitutionalization of Brazilian law (in line with the popular wisdom that "a crooked stick never gets straightened") and that the vice would be irremediable. They were defeated in a recent trial in STF Theme 1,094, which validated the Laws published before Complementary Law No. 114/02, in a trial much criticized by specialized doctrine. Another point of discussion concerns the competence to be actively subject to the collection of ICMS-Import. Complementary Law No. 87/96 limited itself to laconically considering that regarding goods imported from abroad: (a) location of the operation to define the active subject would be the establishment where the physical entry occurs or the domicile of the acquirer when not established; and (b) that the triggering event would occur during customs clearance. It was the perfect recipe for litigation.
Initially, the discussion was the defense, especially by the coastal States, that the Complementary Law granted jurisdiction to the place where physical clearance took place, which was only rejected by the STF in 2009 through Extraordinary Appeal No. 405.457, defining that the ICMS is "due to the state where the domicile or establishment of the legal recipient of the good is located, regardless Oman Mobile Number List of whether the clearance occurred through a different federal entity" . However, this ruling opened the way for a second discussion, related to the correct meaning of the concept of "legal recipient", which dragged on for years and generated a multitude of tax assessments, especially due to the unilateral granting of tax benefits related to import of goods (with emphasis on Espírito Santo and Santa Catarina.
Against which recipient States, especially São Paulo, declared open war) which led to the proliferation of "planning" in which customs clearance took place in one State and then immediately Merchandise was sent to the State of actual destination, both in the form of direct import and order. There were simulations, but the states that felt injured did not know how to weigh in. They began to mischaracterize, with very little criteria, the structure of various operations with imported goods, especially those originating from these states that were known for granting generous tax benefits for imports, to consider that international legal circulation materially occurred within their territory and that consequently it would be competent to the collection of ICMS-Importation, with the application of penalties.
Initially, the discussion was the defense, especially by the coastal States, that the Complementary Law granted jurisdiction to the place where physical clearance took place, which was only rejected by the STF in 2009 through Extraordinary Appeal No. 405.457, defining that the ICMS is "due to the state where the domicile or establishment of the legal recipient of the good is located, regardless Oman Mobile Number List of whether the clearance occurred through a different federal entity" . However, this ruling opened the way for a second discussion, related to the correct meaning of the concept of "legal recipient", which dragged on for years and generated a multitude of tax assessments, especially due to the unilateral granting of tax benefits related to import of goods (with emphasis on Espírito Santo and Santa Catarina.
Against which recipient States, especially São Paulo, declared open war) which led to the proliferation of "planning" in which customs clearance took place in one State and then immediately Merchandise was sent to the State of actual destination, both in the form of direct import and order. There were simulations, but the states that felt injured did not know how to weigh in. They began to mischaracterize, with very little criteria, the structure of various operations with imported goods, especially those originating from these states that were known for granting generous tax benefits for imports, to consider that international legal circulation materially occurred within their territory and that consequently it would be competent to the collection of ICMS-Importation, with the application of penalties.