A inconstitucionalidade do diferencial de alíquota do ICMS no estado da Paraíba em razão das compras feitas pela internet.

Abstract

Imposto sobre Operações Relativas à Circulação de Mercadoria e sobre Prestação de Serviços de Transporte Interestadual e Intermunicipal e de Comunicação.The scope of this study was the analysis of the legal aspects of the ICMS - Tax on the Merchandise and Provision of Interstate and Intermunicipal Services and Communication, especially in relation to the charging of differential Aliquots in non presentially transactions, made over the Internet. It's a constitutional rule that all the end consumers, located in another State, not a taxpayer, such as of those who perform Internet shopping will bear only the ICMS charged by the State of origin. However, some less industrially developed states, as in the case of the North and Northeast, have signed an arrangement through the Protocol ICMS 21/2011 and several State laws were edited, as in the case of Law 9582/2011 in the State of Paraíba, starting to require the ICMS due to final consumers, not taxpayer, who acquires merchandise non presentially, so that the State does not suffer a reduction of your income. To understand more clearly the current fiscal war, was analyzed the tax legal relation, and the general aspects of the tax in itself. After that, there was a general approach to the ICMS, their legal contours and constitutional. In the end, was analyzed the differential Aliquots charged, the phenomenon of fiscal war and the State Law of Paraíba No 9582/2011 and Protocol ICMS 21/2011, the positioning of the constitutionality adherents, as well as those who are adept to the unconstitutionality and finally, the understanding of the Federal High Court on the topic. After this study it was observed that exists certain contradiction of Protocol 21/2011 and of the state laws with the constitutional provisions, especially regarding the requirement of charging differential rates for who does not fit right , but also a violation of the the sharing scheme ICMS adopted by the Constitution, the occurrence of the phenomenon of double taxation, the failure in fixing the interstate Aliquots and disobedience to the principle of strict legality tax, being suggested by the Superior Court, in order to end this framework, a reform on the taxation.