Avaliação do procedimento administrativo utilizado pela fazenda pública para inserir os sócios como corresponsáveis em certidão de dívida ativa decorrente de tributo com lançamento por homologação declarado e não pago pela empresa contribuinte

Abstract

The present work aims to analyze the legal limits to be applied in the performance of the Public Treasury by including partners in debt certificates that deal with taxes declared and not paid by the contributing company, in which they are part of the corporate structure, a practice that has been carried out by the public administration as a strategy for recovering taxes, without observing the necessary legal and procedural requirements. For this, at first, the legal requirements listed in articles 134 and 135 of the National Tax Code are analyzed for attribution of co-responsibility and the necessary respect for the Due Legal Process as a counterpoint to the common practice of the Public Finance in the automatic insertion of the partners in active debt certificates to be enforced in court. From the premises obtained with the investigation, it proceeds with a specific analysis of the partners' enrollment in active debt certificates that are automatically constituted, dispensing with the administrative process for enrolling the original taxpayer, and thus it is concluded that, although the company can be entered into active debt immediately after verifying the non-payment of the tax declared by it, the automatic inclusion of the partners is different from the national law and is in line with the contents of the STJ's jurisprudential understanding number 430.