O ICMS Importação e as alterações trazidas pela Emenda Constitucional n.º 33/2001

Abstract

The Constitution remodeling brought by the Constitutional Amendment No. 33 of 2001, emerged a significant change to the importation ICMS, embodied in the new wording of the Article 155, § 2, section IX, "a" of the Federal Constitution. With the new text, there is a controversy about the Constitutionality of this provision. Some experts believe the new changes brought it to a unconstitutional status, because it would be a tax upon the same taxable income of the Importation Tax and violating the principle of non-accumulation. Others experts defend the constitutionality of the referred article. For taxation of the importation ICMS, entry of goods in the Country is not enough, but it is necessary to practice a circulation operation. At this point, it was reached the conclusion that all hypotheses of incidence under the label of "ICMS" must be preceded by an operation (common core), defined as a legal transaction. In addition, was shown that there is no violation of the principle of non-accumulation, in that, with the absence of a higher tax liability, it should not be said anything about accumulative incidence of taxes and the right of allowance. Thus, the principle of non-accumulation is a common core for all cases of Tax assessment and none of these assumptions restricts the mentioned principle. However, it was concluded that the new text of the article is unconstitutional as it violates the principles of tax -paying ability and non-confiscation