THE FLAGRANT UNCONSTITUTIONALITY IN THE GRANTING OF ICMS TAX BENEFITS BY COMPLEMENTARY LAW NO. 160/17: THE RULE CHALLENGES THE STF'S JURISPRUDENTIAL UNDERSTANDING AS A CLASSIC BACKLASH EFFECT THAT IS NOT IN ACCORDANCE WITH THE BRAZILIAN CONSTITUTIONAL SYSTEM

a norma desafia o entendimento jurisprudencial do stf como efeito clássico de backlash em desconformidade com o sistema constitucional brasileiro

Abstract

The theme is instigating and quite current, affects everyone, although not everyone is aware of the harmfulness of granting tax benefits to ICMS without observing the Federal Constitution. The essay discusses the fact that a Complementary Law no. 160/17, of the Federal Senate, contrary to the jurisprudence of the STF, has granted pardon to the States and the Federal District for the unconstitutional concession of tax benefits to the ICMS, as well as to release the fiscal war in Brazil in search of this tribute. The article seeks to position the reader on the context of the facts and how the current legal norms, including the Constitution itself, discipline the subject. It demonstrates that the Federal Constitution disciplined the subject that deals with the granting of fiscal benefits of ICMS based on the agreement between the entities of the federation, precisely to preserve the federative pact and democracy itself. He clarifies that LC 160/17, although having the same hierarchy as LC 24/75 is unconstitutional, because it contradicts the Federal Constitution, did not preserve the federative pact and democracy. The article discusses the backlash effect of the STF decisions and the limits that may occur, mainly from the Legislative Branch, which must abide by the principles and rules described in the Federal Constitution that has its normative effectiveness and leadership. It demonstrates that the argument of legal certainty is not compatible with the with the constitutional system in force, especially in view of the constitutional principles of legality, morality and the public interest. Finally, the article highlights that the decision denies the normative force of the Federal Constitution and its values, as the decision adopted in General Repercussion No. 851,421 puts at risk the integration of the form of State and the government regime of the brazilian nation.