Relação de poder entre o fisco e o contribuinte: análise das presunções, indícios e ficções jurídicas em processos tributários administrativos e judiciais

Abstract

The fiscal authorities are using the indirect evidence - presumptions, indications and legal fictions - frequently in administrative inspection proceedings, which culminate in the collection of tax assessments and, consequently, the tax credit, as well as judicial decisions that order the formation of an economic group. A certain stir on the subject emerged on the occasion of the country's current political scenario, where corruption scandals are increasingly being used as a basis for tax accountability. In order to do so, the research was divided into three chapters, dealing initially with the presumptions, indications and legal fictions, from an epistemological analysis to its use in the scope of Tax Law, and then to investigate the related constitutional tax principles. Secondly, practical situations of the subject will be analyzed, for example, the administrative inspection proceedings established by the investigation of Operation Car Wash, in which the fiscal administration presumes the practice of criminal tax offense, generating the suppression of taxes and eventual responsibility because the taxpayer has not submitted documents and evidence in the form required by the tax authorities. The research continues in the judicial sphere, facing decisions that broaden the hypotheses of tax liability under the allegation of formation of an economic group, giving privilege to the reception of presumptions, fictions and / or indications arising from economic-business. Thirdly and finally, a critical analysis of decisions - administrative and judicial - in tax matters, based on presumptions, indications and legal fictions is made, in the light of the Toulmin Argumentation and Rationale Model, as a way of achieving a legal relationship between the tax authorities and the taxpayer. It is a research of a qualitative nature, through an indirect investigation process and bibliographic research, with exploratory, descriptive, explanatory and propositive means, being developed through a theoretical presentation associated to the presentation of cases related to the controversy exposed. It was concluded that indirect evidence is an instrument of extreme relevance for the practicability of Tax Law, but fundamental right and guarantees are being violates due to the absence of limits and parameters of use should be established.