A prova da responsabilidade tributária do sócio: ônus, procedimento e momento

• Ano de defesa: 2019
• Autor(a) principal: Ramos, José Eduardo Silvério
• Orientador(a): Tomé, Fabiana Del Padre
• Tipo de documento: Tese
• Tipo de acesso: Acesso embargado
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Sujeito passivo; Contribuinte; Ônus da prova
• Palavras-chave em Inglês: Prova (Direito); Direito tributário; Passive subject; Taxpayer; Burden of proof; Evidence (Law); Taxation - Law and legislation
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/22071

Using the analytical hermeneutic method, from the perspective of Logical-Semantic Constructivism, the present study has as its object the proof of the tax liability of the partner, the burden of proof in tax matters, the procedure and the moment of probative production. The legal rules of tax liability of the partners, based on articles 134, VII and 135, I and III of the National Tax Code, will be described to identify the legal fact of the liability of the partner, in each of the legal hypotheses, which must be proven to imputation of responsibility for the payment of the tax liability to the shareholders. The burden of proving the legal fact of the tax liability of the partner, the procedure and the probationary moment to validly constitute the tax credit against the partner, will be addressed, having as reference system for the validity analysis the norms of the system of Brazilian positive law. Although Brazilian law distinguishes the legal personality of the company from the legal personality of its partners, it is only possible to attribute to the partner the responsibility for the payment of the company's tax obligations in tax contingencies, it is verified in the legal practice, verified in academic texts and jurisprudence , including in the decisions of the Superior Court of Justice, the following problems: (i) confusion between the different legal assumptions of tax liability: socio-quota holder (article 134, VII, CTN) and partner-administrator (article 135, III, CTN); (ii) imputation of tax liability to the partner without having exercised the legal fact of tax liability; (iii) constitution and collection of the tax credit against the partner in disagreement with the Brazilian positive law, which indicates the moments in which the facts can be constituted by probative production and the limits within which the truth will be produced. These problems, verified by the research on the subject, demonstrate that there are unfounded jurisprudential understandings in the norms derived from the texts of the positive country law, including a consolidated understanding in the Superior Court of Justice applying presumption to CDA – Certificate of Active Debt in disagreement with the right position. This paper intends to delimit the requirements for the constitution of the legal facts of the tax liability of the partners in the terms prescribed by the Brazilian positive law