The ICMS rate differential and the precedence in the decisions of the Federal Supreme Court in Brazil O diferencial de alíquota do ICMS e a anterioridade nas decisões do Supremo Tribunal Federal no Brasil

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Law of Justice Journal
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Matsushita M.B.B.N.
Ishikawa L.
de Carvalho D.F.
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© 2022, University of Passo Fundo. All rights reserved.The purpose of this article is to analyze the (in)constitutionality of the collection of the ICMS rate differential in the period 2022, considering the anteriority, in Brazil. First, it seeks the elucidation of the constitutional elements that delimit the scope of the ICMS levy and its rate differential, as well as the economic context that gave rise to the constitutional reform to provide for the mentioned tax. Afterwards, the nuances of the Extraordinary Appeal No. 1.287.019/DF and the need of a Complementary Law for the collection of the ICMS rate differential is verified. At this point, a brief exposition is made of the normative scenario in which the Supreme Court's decision took place, as well as the mechanism created by the legal system to validate the collection of the rate differential. Next, the case law of the Federal Supreme Court on anteriority is examined, as well as the doctrine commenting on the subject, with special attention to the proportionality method adopted by Robert Alexy. Finally, the way in which the issue should be faced will be pointed out, considering the past jurisprudence of the Federal Supreme Court.
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