The Criminalization of Non-payment of ICMS and the Fiction of Juridical Repercussion of Taxes

Abstract

The present article aims at determining if the indistinct application of the fiction of juridical repercussion of non-cumulative taxes is valid, considering the interpretation and application of tax competence and criminal law norms. In order to address this issue, the article begins by explaining the partial incorporation of the economic premise of indirect tax repercussion, by Brazilian Tax Law, leading to the fiction of juridical repercussion regarding non-cumulative taxes. Following, the article examines the juridical nature of this norm, as well as its function. It concludes that the fiction of juridical repercussion of taxes is efficacious regarding the interpretation and application of norms whose immediate function is to protect fundamental freedom rights, such as tax competences and tax immunities. However, the fiction of juridical repercussion of taxes is not efficacious regarding norms whose immediate function is the restriction of fundamental rights, like penal norms.