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Porque a operação “quebra gelo” poderá influenciar a sua empresa?

Porque a operação “quebra gelo” poderá influenciar a sua empresa?

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A operação “quebra gelo”, deflagrada pela Secretaria da Fazenda do Estado de São Paulo, tem o objetivo de investigar contribuintes suspeitos de emissão irregular de Notas Fiscais Eletrônicas e com isso suspender suas inscrições estaduais e bloquear a emissão de novas notas.

Mas porque a operação “quebra gelo” poderá influenciar a sua empresa?

De acordo com a Secretaria da Fazenda, levantamento realizado pelo Fisco paulista com base em análises de mineração de dados (data-mining) aponta que os 197 contribuintes-alvo destacaram R$ 350 milhões em débitos de ICMS nas notas fiscais eletrônicas de vendas emitidas de janeiro de 2012 a dezembro de 2014, e apresentaram um conjunto de indícios que sugerem tratar-se de documentos fiscais inidôneos (“notas frias”).

  • MINHA EMPRESA É IDÔNEA – PORQUE DEVO ME PREOCUPAR?

Uma vez constatada pela fiscalização que a empresa, com quem a sua realizou operações comerciais, é inidônea, todas as notas fiscais por ela emitidas serão consideradas irregulares, ou seja, nota inidônea/“nota fria”.

Pois bem, se essa empresa é declarada inidônea, todos os contribuintes que transacionaram com ela e que se creditaram do ICMS, provavelmente, terão seus créditos tidos como “inidôneos”, pelo Fisco Estadual.

Essa é a grande preocupação, sua empresa pode ser idônea, todas suas operações podem ter sido realizadas de boa-fé, no entanto, ainda há risco de que seus créditos de ICMS sejam glosados em futuras fiscalizações.

  • O ASSUNTO NO TRIBUNAL DE IMPOSTOS E TAXAS

A maioria dos processos, julgados pelo Tribunal de Impostos e Taxas do Estado de São Paulo, estão relacionados à glosa de créditos pelo Fisco paulista.

Assim, a maior parcela desses casos versa sobre aqueles contribuintes que tiveram seus créditos de ICMS glosados, ou seja, anulados e, portanto, terão que arcar com o “pagamento do imposto”, além de imposição de multas em patamares exorbitantes.

O problema está, justamente, no fato de que a maioria desses contribuintes, que tiveram seus créditos “anulados” pelo Fisco Estadual, concretizaram a operação comercial, mas por algum motivo o seu fornecedor foi declarado inidôneo.

  • CONSEQUÊNCIA DA OPERAÇÃO

Segundo o site da SEFAZ-SP “nas quatro edições anteriores da operação Quebra-Gelo, que teve início em 2012, foram fiscalizados 951 contribuintes do ICMS. O trabalho de inteligência fiscal aliado à ferramenta de mineração de dados (data-mining) resultou num índice de assertividade de 81%, com a consequente suspensão e posterior cassação das inscrições estaduais das empresas que emitiam de Notas Fiscais Eletrônicas (NF-e) irregulares.”

Com a operação “quebra gelo” em pleno funcionamento, a tendência é que aumente esse perfil de demanda, tanto na esfera administrativa quanto na judicial.

A chance do contribuinte, mesmo que de boa-fé, ser surpreendido com um Auto de Infração cresce significativamente, por isso é necessário tomar alguns cuidados específicos, principalmente com relação às provas documentais, já que estas serão imprescindíveis para o sucesso em uma eventual discussão.

Em breve especificaremos quais os cuidados devem ser tomados para obter êxito nessas autuações ou ao menos minimizá-las.
Equipe Tributária do Molina Advogados

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