HC Nº 399.109 – SC (2017/0106798-0) A recente criminalização do STJ diante da omissão no recolhimento e apropriação indébita do ICMS próprio.

Abstract

The main objective of this article is to discuss the reasons which led the STJ to criminalise the omission before the recollection and misappropriation of ICMS itself, to be applied in crimes against the order of taxation, popularly known as white-collar crimes, and governed by Law No. 8.137/90 and Criminal Tax Law, in which they are treated as crimes of less potential offensive to society, and that in the perspective of the theory of tagging, this practice has been the great differential of entrepreneurs, resulting in unfair growth of companies, in addition to discussing the difficulty in the identification of the agent, the possibility of extinction of criminality with the payment of the obligation, in addition to the archiving by insignificance in reason The level set by the Supreme Court, is, therefore, requirements, objectives to be analyzed in order to ensure a more effective penalty regarding the execution of the payment of the debt and distribution of Lendings arising from ICMS, aiming at the development of basic care in relation to targeted policies for health, education and security. To achieve the objective mentioned, we analyze the historical evolution of the levying of ICMS in Brazil, as well as the performance of the Brazilian legal about the legislation applied to tax crimes, and the proposal of criminalization of conduct which talks about the omission and misappropriation of the ICMS.