The decision handed down by the Federal Supreme Court when ruling on RHC 163.334 establishes that the non-collection of the declared ICMS is a crime when the taxpayer acts contumaciously and maliciously, fitting this conduct into article 2, II, of Law 8137/1990.
In light of the aforementioned decision, it can be concluded that the partners of the companies that are accused by the State Public Prosecutor’s Office will need to demonstrate through evidence that they did not intend to appropriate the resources destined to the public coffers.
In the mentioned case, the convicted parties intend to file a Motion for Clarification, requesting the modulation of effects of the decision, so that the conviction does not retroact and, thus, they are liable for the crime as of the date of the judgment.
Finally, it should be noted that the penalty for this type of crime is six months to two years, and if the taxpayer pays the debt, punishment will be extinguished, even if there is a final and unappealable conviction.