O princípio da seletividade, Tema 745/STF e Lei Complementar nº 194/2022: mudanças na tributação do ICMS e consequências na arrecadação estatal

Abstract

This present paper aims to analyze the consequences in the state collection caused by the reduction of the ICMS rates of products/services considered essential, due to the application of the principle of selectivity. This issue began with the judgment of RE 714.139/SC (Theme 745/STF), in which the Federal Supreme Court recognized the essentiality of electricity, as well as telecommunication services, determining that such products/services were taxed at the general rate of ICMS. In this sense, after the issue of Theme 745, there was a change in the ational Tax Code and in the Kandir Law, through Complementary Law nº 194/2022, recognizing fuels, natural gas, electricity, communications and public transport, preventing the taxation of ICMS on such products/services from occurring at a level higher than the general rate. In this way, considering that ICMS is the main form of collection in the States, it is estimated that the entities allowed to collect about R$44.2 billion with such a reduction in the year 2022, making some changes in the taxation of the aforementioned tax, such as, for example, the increase in the rate in several states of the Federation