The Federal Supreme Court (STF) considered irregular the collection of the increase in the internal ICMS rate from 18% to 20% in the state of Tocantins in 2023. The decision was unanimous, in the judgment of direct unconstitutionality action 7,375.
The ADI was filed by the PSD, which questioned the constitutionality of a provision of provisional measure (MP) 33/2022, converted into Law 4,141/2023, which increased the rate.
According to the applicant, in order to take effect in 2023, the provisional measure should have been converted into law by the last day of the 2022 financial year, which did not happen: the normative act only became law in April 2023.
“The unconstitutionality is so flagrant that it does not require major digressions, since in the present case, the failure to convert MP/33 into law by the end of the year of its enactment (2022) failed to comply, in order to produce its effects in 2023, with the provisions of art. 62, §2º of the Federal Constitution, thus not observing the principle of annual prior notice provided for in Art. 150, III, “b” of the Magna Carta, and Law 4.141/2023, even in force, must wait until January 1, 2024 to produce its effects”, argued the party.
The rapporteur, Minister André Mendonça, agreed that the increase violated the constitutional principle of annual precedence. He determined that the 20% rate would only apply from January 1, 2024.
Mendonça mentioned, in his vote, that the Constitution in fact establishes that provisional measures that imply the institution or increase of taxes will only produce effects in the following financial year if they have been converted into law by the last day of the year in which they were issued.
“Under penalty of allowing the taxing entity to manipulate the time frames in terms of creating and increasing taxes, the Reforming Constituent Power brought to light the rule contained in art. 62, § 2, of the constitutional text, according to which only with the stabilization of the normative act, which occurs with the conversion of the MP into law, according to the wording of this STF, can it be considered that the teleology of the prior exercise has been achieved”, pointed out the rapporteur.