GOODS FOR BONING AND EXCLUSION OF THE ICMS CALCULATION BASIS: CRITICISM UNDER THE AGE OF LEGAL SECURITY, PROOF THEORY AND RATIONAL PERSUASION

Abstract

The Brazilian tax system is constantly analyzed as to the search for a logical approach to the theme of the proof of tax operations, including doctrinal and practical issues surrounding such content. It is essential to affirm and revalidate the critical analysis of the exclusion of the economic content of bonuses, on the basis of calculation of the ICMS (Tax on Goods Circulation and Services, in Portuguese) itself, for the correct application of positive law, or customary jurisprudential, national tax. Judicialisation, for the purpose of excluding the subsidy of the ICMS calculation base, almost always does not denote probative robustness, that is, both the judiciary and the Member States are unable to apply, because of this, the understanding consolidated by the Superior Court of Justice. Consequently, the recognition of the lack of legal and tax relationship in the transactions of consignments of goods as a subsidy, as well as possible crediting, clearing or refund of amounts already paid, there is conditioning to the demonstration of blunt documentary and or forensic evidence in the direction of the real conviction of certainty of the magistrate. The present work seeks to critically analyze the issues relevant to this clash, making it of great importance for understanding the judicial operationalization of the right to exclusion economic content of the bonuses of the calculation basis of the aforementioned tribute.