The tax war and the unconstitutionality of the disallowance of ICMS credits resulting from operations in cases of granting fiscal benefits without authorization from CONFAZ

Abstract

Taxwar is a serious obstacle to the implementation of the 1988 constitutional project, insofar as it prevents the Brazilian State from organizing its federal entities in harmony. The materialization of this “deformative” dispute in the tax disallowance is even more disastrous, insofar as it starts from a supposedly illegal act (tax incentives not approved by CONFAZ) that is mitigated by a reaction that is also materially illegal and indirectly unconstitutional (challenge of the credit highlighted in the invoice by the state receiving the goods). Thus, this distorting process makes the supposedly illegal act practiced by the state supplying the goods fall on the final taxpayer, which violates the rule of non-cumulative ICMS and the constitutional right to the tax credit, which can only be changed by the constitution itself.