NORMATIVE LIMITATIONS TO TAX RESPONSABILITY OF MARKETPLACE OPERATORS

Abstract

The present article aims at analysing the normative limits to the institution of tax responsibility to marketplace operators, in regard to the state tax ICMS, which is owed by the sellers that use intermediating platforms. In order to do so, the article begins with the analysis of the constitutional limits to the institution of tax responsibility, which stem from taxing competence and from the principles of ability to pay, reasonableness and juridical certainty. Additionally, the article analyses the limits to the institution of tax responsibility which stem from complementary laws. Considering these requirements, three stances of tax responsibility engendered by state laws are analysed: (i) responsibility for mere intermediation (State of Paraíba); (ii) responsibility for the seller’s failure to issue fiscal documentation (States of Ceará, Mato Grosso and Bahia); and (iii) responsibility for the failure to provide of information by the marketplace operator (States of Mato Grosso and São Paulo). Finally, the article also analyses the possibility of cumulating these provisions of responsibility.