The prosecutor, Roberto Gurgel, sent to the Supreme Court opinion by grantinginjunctive relief in the direct action of unconstitutionality (ADI 4635) proposed by thegovernor of Amazonas measured against the governor of Sao Paulo and theLegislative Assembly of São Paulo.
The action questina devices which legislate on the ICMS and the tax benefits grantedby the state of Sao Paulo tablets manufactured there. According to the action, this attitude has caused damaging impacts to other states and the Federal District, as the tablets produced in Sao Paulo rate had reduced to zero, while the same product manufactured in the Manaus Free Zone was being taxed at 12% entering in SaoPaulo.
According to the opinion, "it is not possible to issue normative acts that grant tax benefits relating to the GST without the prior conclusion of an agreement under theNational Board of Finance Policy". It was also affirmed the legitimacy of filing the lawsuit by the state governors or the Federal District.
The opinion states that even if a state tax sales tax, the Constitution gives to the lawto complement the way will be granted exemptions, incentives and benefits related to tax and must be granted by resolution of the states and Federal District.
"It is a requirement that aims to avoid the practice of war tax, which ultimately causesthe disintegration of the federal pact itself, by the exorbitant favoritism in the public entity desonerador in injury to other entities of the Federation," argues the opinion.The opinion will be considered by Minister Celso de Mello, rapporteur of the action in the STF.