Produção antecipada de provas como instrumento assecuratório da consensualidade e desjudicialização em matéria tributária

Resumo

This study examines the action for the advance production of evidence as a procedural instrument capable of ensuring consensual dispute resolutions and fostering dejudicialization in tax matters, assessing its practical usefulness in the resolution of tax disputes. The analysis is grounded in the recognition of a context of high tax litigation in Brazil, characterized by the complexity of the national tax system and the slowness of administrative and judicial proceedings, which underscores the need for mechanisms that promote more rational, efficient, and collaborative solutions. The study analyzes the historical and conceptual development of the advance production of evidence, demonstrating that the institute ceased to have an exclusively precautionary nature and came to constitute an autonomous right to evidence. It further examines article 381 of the Code of Civil Procedure (CPC), with particular emphasis on subsections II and III, which authorize the filing of the action to enable amicable settlement, other appropriate means of dispute resolution, or to allow the parties to conduct a prior assessment of the advisability of initiating future litigation. The study highlights the relevance of expert evidence, especially accounting expert examination, as a primary evidentiary tool for clarifying complex technical disputes in tax matters. It demonstrates that the production of evidence in an autonomous proceeding, under judicial supervision and in compliance with due process and the adversarial principle, provides greater certainty, impartiality, and predictability in the parties’ understanding of the dispute, allowing both tax authorities and taxpayers to more accurately assess risks, costs, and probabilities of success in potential litigation. The analysis also addresses the procedural framework of the action, its legal requirements, the limits of judicial intervention, and the absence of res judicata on the merits, emphasizing that, although the Judiciary is involved, there is no material judicialization of the tax controversy. The study concludes that the advance production of evidence transcends its merely evidentiary function and aligns with the contemporary paradigm of a more cooperative and efficient tax procedure, oriented toward the pacification of relations between the State and taxpayers and consistent with the development of a multi-door justice system.

Ficha do documento

Tipo

Dissertação

Ano

2025

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/38283

Palavras-chave

Produção antecipadaProvaPeríciaDireito tributárioResolução de disputasDesjudicializaçãoConsensualidadeEvidenceExpert examinationTax lawDireitoProva (Direito)Processo tributárioResolução de disputas (Direito)Poder judiciárioAção judicial