INCENTIVOS FISCAIS NO ÂMBITO DO ICMS: regramento constitucional, falhas jurídico-legislativas, federalismo e guerra fiscal

Abstract

This work has as study object the ICMS tax incentives, one of the tools most used by States and the Federal District to intervene in economic relations, in search of local social development. Since long time, it has been observed in the States, especially the least developed one’s, the unilateral exercise of the ICMS competence’s dissolution, without having due regard to the sealing expressed in § 2 of Art. 2 of Complementary Law No. 24/75, which requires the approval of incentives through an agreement signed with the National Council for Financial Policy ─ Confaz, with unanimous consent of all states and the Federal District. Given this persistent disregard for legal requirements, the central problem of this study is to investigate whether the entire text of CL No. 24/75 was approved by the current Constitution; specifically, if there is constitutional seal the States and the Federal District to the unilateral grant of any form of tax incentives; if the Art. 155, § 2, XII, "g", the CF/88 actually requires a unanimous decision for approval and revocation of tax incentives, as peremptorily try to emphasize most of the doctrine and jurisprudence; if the penalty logic of the law can be applied today; and for failures in Brazilian law that prevent the granting of ICMS incentives that promote illegal tax competition and allow the waste of public money and the deterioration of federal relations. The theme is approached from the point of view of the science of law, taking this in its strict sense, as over level language, talking about another, positive law, or prescriptive language