Aplicação do incidente de desconsideração da personalidade jurídica para aferição da responsabilidade de terceiros no curso da execução fiscal

Resumo

This study examines the application of the Incident of Disregard of Legal Entity (IDPJ) to assess the liability of third parties in the context of tax enforcement proceedings. The objective is to improve the formation of subsequent passive joinder when liability is identified at a stage following the acts of legality control and the issuance of the extrajudicial enforceable title, the Certificate of Active Debt (CDA), while ensuring the rights to adversarial proceedings and ample defense for those held liable. The issue remains controversial. While part of the legal doctrine and decisions issued by local courts recognize the IDPJ as a viable instrument for redirecting tax enforcement against third parties not listed in the CDA, particularly in cases involving so-called “economic groups,” the prevailing doctrine and jurisprudence oppose this application. They argue that the use of the incident is limited to cases of disregard of the legal entity under Article 50 of the Civil Code, and its application to cases of tax liability provided for in the National Tax Code (CTN) could infringe upon the specific privileges and guarantees inherent to tax credits. Currently, Theme 1,209 is pending judgment before the Superior Court of Justice (STJ) under the framework of repetitive appeals. This judgment may shed light on the application of the IDPJ in the context of tax enforcement or raise new issues for debate. Amid this scenario of uncertainty and aiming to contribute to solutions for this discussion, the study begins by analyzing the specificities surrounding the liability of third parties during tax enforcement proceedings, particularly regarding the inclusion of parties not originally bound by the CDA. It initially concludes that the subsidiary application of the IDPJ is appropriate in cases of redirection against members of economic groups under Article 50 of the Civil Code, in situations where the liability hypothesis is not expressly provided for in tax legislation. Similarly, the study also concludes that the incident may be applied by analogy in cases of subjective liability under Articles 124 and 135 of the CTN, as these cases require proof and individualization of willful misconduct, making the right to adversarial proceedings essential. Finally, this study seeks to foster future debates and contribute to the improvement of thirdparty liability procedures in tax enforcement, promoting a balance between the tax authority and taxpayers while respecting constitutional principles.

Ficha do documento

Tipo

Dissertação

Ano

2024

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/36212

Temas

Finanças Públicas

Palavras-chave

IncidenteDesconsideraçãoPersonalidade jurídicaRedirecionamentoTerceirosExecução fiscalAmpla defesa e contraditórioIncidentDisregardLegal personalityRedirectionThird partiesTax executionAmple defense and contradictionDireitoDesconsideração da personalidade jurídicaResponsabilidade (Direito)Direito tributário - Brasil