Análise empresarial-tributária da dissolução irregular de empresas como critério para a desconsideração da personalidade jurídica no âmbito das execuções fiscais

Abstract

The Brazilian legal system acknowledges the patrimonial autonomy between legal entities and the partners and administrators who represent them. However, that is not an absolute statement, since it’s possible to disregard legal personality. In the field of Tax Law, according to the article 135, III of the National Tax Code, such institute is applicable when partners and administrators exceed their powers and breach the law or the company’s Articles of Incorporation or bylaws. For the purposes of the present study, it matters to analyze the compatibility between the aforementioned hypothesis of corporate veil lifting and the irregular dissolutions of companies. From the analysis, it’ll be possible to verify that such extinctions imply breach of the law, offering grounds, at least in theory, to justify enforcing debts against the company’s partners. Nevertheless, there are other factors which allow or disallow piercing the legal veil of business organizations, such as: the running of statute of limitations; the sheer fulfillment of the tax obligation and mostly the state of mind implicit in a given conduct. Moreover, there’s still the burden of proof to be met in eventually enforcing tax debts against partners, as well as the constitutional need to offer them means of defense in face of illegal acts against the company’s patrimonial autonomy.