Ministros analisam crédito de ICMS em caso de inadimplência

Ministros analisam crédito de ICMS em caso de inadimplência

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A 1ª Turma do Superior Tribunal de Justiça (STJ) negou um pedido da Telefônica para recuperar o ICMS sobre prestações de serviços de comunicação que não foram pagas por consumidores finais. A empresa considerou os casos de “inadimplência definitiva”, quando não seria mais possível efetuar a cobrança. A decisão da turma foi unânime e dela cabe recurso.

O assunto é novo na turma, como afirmou na defesa oral o advogado da empresa, João Vitor Loke Reis, do Machado Meyer Advogados. A companhia recorreu ao STJ após decisão contrária do Tribunal de Justiça de São Paulo (TJ-SP).

Na Corte superior, o relator, ministro Napoleão Nunes Maia Filho, afirmou que a hipótese trata de uma “reengenharia tributária bastante tentadora”, mas não seria justo concluir que a frustração de pagamento de qualquer bem ou serviço poderia desonerar a empresa. “Seria um caos tributário”, afirmou.

Em seu voto, a ministra Regina Helena Costa disse não concordar com a hipótese de, com a inadimplência, uma operação onerosa se tornar gratuita. “Se toda inadimplência de serviços contratados acarretar o não pagamento do tributo, destrói-se qualquer sistema tributário em qualquer lugar”, afirma. Ainda segundo a ministra, a inadimplência nunca vai tornar um negócio gratuito.

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O Supremo Tribunal Federal (STF) julgará também o tema em repercussão geral (número 705). O processo trata da possibilidade de compensação do ICMS relativo à prestação de serviço de comunicação em que ocorreu inadimplência absoluta do usuário.

No âmbito teórico, a tese faz sentido, segundo o advogado Daniel Szelbracikowski, do Advocacia Dias de Souza. A ideia é que sem onerosidade não estaria caracterizada a operação e o ICMS não incide sobre telefonia, mas sobre operação de telefonia. As turmas do STJ já decidiram de forma contrária à tese nos casos de inadimplência sem o detalhamento de inadimplência “definitiva” – caso em que já seria lançado na contabilidade como uma perda, pela impossibilidade de cobrança.

Conforme o advogado, há decisões do STJ e do próprio STF, em relação ao PIS e a Cofins, no sentido de que o fato de haver inadimplência não possibilitaria o estorno dos tributos. Porém, o STF poderia entender de forma diferente, considerando que a não cumulatividade do ICMS é diferente do PIS e da Cofins.

Fonte: Valor Econômico
Data: 07 de dezembro de 2016
Acesso: 09 de dezembro de 2016

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