A HIDRA tributária na transição da reforma

a inconstitucionalidade da inclusão do IVA na base de cálculo do ICMS

Abstract

Constitutional Amendment No. 132/2023 established the Brazilian dual VAT model — IBS, CBS, and Selective
Tax — with the objective of promoting neutrality, simplicity, and full non-cumulativeness in consumption taxation.
During the transition period (2027–2032), some states have advocated for the inclusion of these new taxes
in the calculation base of the residual ICMS (State VAT). This article demonstrates the unconstitutionality
of this claim in light of the theory of tax law, the fundamental rights of the taxpayer, and the principles
of strict legality, the reserve of complementary law, legal certainty, and neutrality. The analysis is
enriched by dialogue with the doctrines of Becker, Greco, Torres, and Derzi, and by the application of
the jurisprudence of the Supreme Federal Court, especially RE 574.706 (Theme 69), ADPF 190, and ARE 1469426/SP.
It is concluded that such inclusion constitutes a systemic setback, a violation of objective good faith,
and a direct affront to the logic of VAT and the purpose of Constitutional Amendment 132/2023.