The pandemic caused by covid-19 has been generating economic impacts around the world and economists foresee the possibility of a significant recession period.
Usually, in times of crisis, taxpayers are often forced to devise solutions to reduce expenses and preserve the company’s financial health. Among them, the taxes payment postponement or deferral, although not ideal or recommended, becomes an alternative to guarantee employments and ensure operational activity, instead of adopting a dismissal plan or non-compliance with other obligations. In other words, many entrepreneurs choose to pay their suppliers and employees first and, when the cashier is healthy, pay taxes arrears, including fines and interest.
However, we highlight that this situation may lead to criminal consequences for some taxes, according to the recent opinion of the Superior Courts (STJ and STF), in HC 399.108/SC and RHC 163.334/SC, which consider the non-payment of State Tax on Services (ICMS), although declared to the authorities, as a crime, under the terms of art. 2, item II, of Law No. 8,137/1990. For the majority of justice, the transfer of tax due by the company as a taxpayer in their own operation in the goods’ price would constitute a hypothesis of value “appropriation” and, therefore, would justify the application of that article.
Click here to read the full article by Luiz Fernando Ulhoa Cintra and Gabriela Carrocini De O. Monico of Lacaz Martins, Pereira Neto, Gurevich & Schoueri Advogados.
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