A reclamação constitucional como instrumento de impugnação de autos de infração tributáriaanálise crítica nos casos de pejotização

Resumo

This dissertation examines the use of the constitutional complaint (reclamação constitucional) as a mechanism for challenging tax assessments issued by the Receita Federal do Brasil (Brazilian Federal Revenue Service) in cases involving pejotização, understood here as the misclassification of employment relationships through the interposition of legal entities. Originally conceived as an exceptional remedy designed to preserve the jurisdiction of the Supremo Tribunal Federal (STF), Brazil’s Supreme Court, and the authority of its decisions, the constitutional complaint has increasingly been used as a substitute for ordinary administrative and judicial avenues of review. In tax matters, this distortion becomes particularly acute when taxpayers assessed for sham transactions and tax fraud in pejotização cases bring constitutional complaints directly before the STF, alleging violations of labor-law and contract-law precedents in order to set aside tax liabilities relating to individual income tax, social security contributions, and other payroll-related taxes. These liabilities stem from tax assessments that disregard service agreements entered into between legal entities (service recipients and service providers) and impose taxation on the basis of the principle that substantive reality prevails over form. The central objective of the study is to understand the legal and institutional effects of this practice by assessing the extent to which the STF itself, by admitting such complaints outside the traditional parameters governing admissibility, contributes to weakening the authority of the tax administration and encouraging strategic litigation. The research combines a doctrinal approach, grounded in the theory of precedents and legal argumentation, with an empirical component that maps and analyzes constitutional complaints filed over the last five years directly against notices of tax assessment related to pejotização. The findings reveal a pattern of undue expansion in the admissibility of constitutional complaints, with concrete impacts on revenue collection and on the control of abusive tax planning. In conclusion, the dissertation proposes doctrinal and normative criteria for delimiting the use of constitutional complaints against administrative acts in tax matters, with a view to preserving the institutional balance between the STF and the tax administration, legal certainty, and the effectiveness of the system of precedents.

Ficha do documento

Tipo

Dissertação

Ano

2026

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38577

Palavras-chave

Reclamação constitucionalPejotizaçãoFraudeSTFLitigância estratégiaConstitutional complaintTax fraudSham transactionsTax enforcementStrategic litigationDireitoDireito tributário - BrasilBrasil. Supremo Tribunal Federal - JurisprudênciaFiscalização tributáriaPessoa jurídica - Impostos