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Confaz valida incentivos

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O Conselho Nacional de Política Fazendária (Confaz), colegiado que reúne os secretários estaduais de Fazenda, acaba de dar uma má e uma boa notícia aos contribuintes de ICMS, que utilizam incentivos fiscais. A má: todos os Estados ficam autorizados a exigir de volta uma fatia de pelo menos 10% dos valores que concedem às empresas a título de incentivo – o que Goiás já fazia. A boa é que por vias tortas o Confaz está reconhecendo a validade destes programas de fomento, duramente combatidos nos últimos anos.

Para melhor contextualizar os fatos é importante lembrar que a Lei Complementar 24/75 exige o reconhecimento unânime do Confaz, ou seja, de todos os Estados da Federação para que um incentivo baseado no ICMS tenha validade. Esse consenso nunca existiu e por isso os Estados mais ricos têm batido com força nos emergentes, como Goiás, que recorreram aos incentivos para atrair indústrias. Há retaliações para todos os gostos, inclusive ações no STF, com poder de fulminar todo o conjunto da obra

Diante da necessidade de aliviar o arrocho financeiro imposto pela crise político-econômica, o Confaz publicou há poucos dias o Convênio 31/16, estabelecendo que os Estados ficam autorizados a condicionar a fruição dos incentivos, inclusive dos que vierem a ser criados, a contrapartida dos 10%. Só podemos entender que o Confaz acaba de reconhecer a validade dos ditos programas, pois não nos é permitido imaginar um convênio a normatizar o nada.

Até o momento imediatamente anterior à aprovação do Convênio 31, os combatidos incentivoss eram, sob o ponto de vista da formalidade, absolutamente desconhecidos pelo Confaz, provavelmente nenhum deles sequer foi submetido ao conselho. Consequentemente, os incentivos não existiam no mundo legal. Assim, o tratamento que cada Estado desse a eles continuaria tão irregular quanto antes. Se houve a preocupação do órgão de validar a contribuição que passa a ser exigida sobre o incentivo, é inconcebível que não valide o principal.

Estaria o Confaz agindo como um Tirésias invertido, aquele cego da mitologia grega que habita o mundo dos mortos e, de vez quando se nutre pela mão de uma visita que lhe traz sangue vindo do mundo dos vivos? Nessa inversão, o Confaz é que estaria mergulhando no mundo dos mortos para buscar um naco que viesse a nutrir seus sócios cá na terra dos vivos.

Seria um ato muito contraditório, para um colegiado com décadas de estrada. Antes de autorizar os sócios a cobrar o seu naco, o Confaz trouxe os incentivos ao mundo dos vivos da legalidade. Eles estão reconhecidos.

Sidnei C. Pimentel, formado em Comunicação pela UFG, é advogado tributarista com MBA em Finanças e controladoria pela FGV e sócio do Terra, Pimentel e Vecci Advogados Associados.

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