Distinction between Normative Text and Legal Norm and the Necessary Application of Anteriority in Case of Repeal of ICMS Exemption

Abstract

In the last decades, Courts have ruled for the non-application of anteriority in case of repeal of ICMS exemption, based on the understanding of the legal nature of the exemption, in the sense that the exempt fact is in the field of incidence. However, from the distinction between normative text and legal norm, the doctrine contemporary to the enactment of the CTN that advocated exemption in the field of incidence has been overcome, and exemption must be understood as being inserted in the field of non-incidence. As a result, it is concluded that the anteriority is fully applicable to the hypothesis of repeal of ICMS exemption, based on the provisions of art. 104, III, of the CTN, and that Supreme Court Understanding n. 615 should be repealed.