TJ-SP autoriza devedor a usar créditos de ICMS

TJ-SP autoriza devedor a usar créditos de ICMS

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Uma empresa não pode ser impedida de usar os seus créditos de ICMS mesmo se estiver em dívida com o Fisco. O entendimento, que contraria a legislação paulista, foi proferido pelo Tribunal de Justiça do Estado (TJ-SP) em processo envolvendo um frigorífico.

O artigo 82 do Regulamento do ICMS veda a apropriação e a utilização de crédito acumulado ao contribuinte que tiver débito fiscal relativo ao imposto – inclusive se for objeto de parcelamento.

No caso julgado, porém, contou em favor da empresa o fato de atuar como exportadora. Para essas situações específicas, entenderam os desembargadores da 7ª Câmara de Direito Público do TJ-SP, o Estado não pode legislar.

Isso porque há previsão direcionada a esses casos na Lei Complementar 87/96, a chamada Lei Kandir. No artigo 25, parágrafo 1º, consta que, se o contribuinte tiver crédito acumulado decorrente de exportação, pode fazer a transferência desses créditos para as suas filiais ou mesmo para outras empresas que não sejam de sua propriedade.

Relator do caso, o desembargador Fernão Borba Franco afirma em seu voto que, sendo assim, não poderia uma legislação estadual – hierarquicamente inferior à lei complementar federal – impor limitações. “A norma [Lei Kandir] é autoaplicável”, enfatiza na decisão (processo nº 1040532-27.2017.8.26.0576).

É comum que as empresas exportadoras acumulem muito crédito de ICMS, diz o advogado Douglas Mota, do escritório Demarest. Nas operações internas, ele explica, há incidência da tributação no momento em que a companhia compra produtos do seu fornecedor – o que gera crédito – e quando ela vende – o que gera débito.

Já nas exportações, existe a tributação também quando a empresa compra produtos do seu fornecedor, mas não há quando ela vende para fora do país. Por isso, costuma haver o acúmulo de crédito.

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No caso julgado pelo TJ-SP, o frigorífico tinha acumulado R$ 5 milhões em créditos de ICMS. Representante da empresa no processo, a advogada Jessica Garcia Batista, do escritório Peluso, Stüpp e Guaritá Advogados, entende a questão como “sensível aos frigoríficos” de modo geral.

“Especialmente para quem tem planta aqui no Estado de São Paulo. Aqui não tem quase boi. Então, os frigoríficos vão adquirir em outros Estados e pagam ICMS. Essa tributação que não vai ser utilizada na saída acaba, então, pesando demais no custo. E a utilização dos créditos é um meio de se conseguir minimizar isso”, diz a advogada.

Leo Lopes, do WFaria Advogados, chama a atenção, no entanto, que o mesmo entendimento não poderia ser aplicado às empresas que não são exportadoras. Nesses casos, frisa, a Lei Kandir permite a regulamentação pelos Estados.

“Há uma segregação”, diz. “Em relação aos créditos de exportação se aplica automaticamente a lei federal e não é necessária nenhuma regulamentação. Já nos demais, a lei complementar faz referência que os governos estaduais regulamentem. Então é possível que façam previsões específicas, como a que estabelece que os que têm dívidas com o Fisco não possam usar os créditos”, complementa o advogado.

Leo Lopes destaca que essa questão já foi enfrentada ao menos duas vezes pelo Superior Tribunal de Justiça (STJ) – por meio do RMS 19.583/RJ e no RMS 21.240/RJ.

A Procuradoria-Geral do Estado de São Paulo informou que houve pedido de dispensa de recurso aos tribunais superiores quanto a esse caso julgado pelo TJ-SP. “Porque a discussão da tese jurídica implica o confronto de legislação estadual com a jurisprudência do STJ”, afirma por meio de nota.

Fonte: Valor Econômico
Data: 18 de abril de 2018
Acesso: 20 de abril de 2018

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