A teoria da cegueira deliberada como prova indireta em matéria tributária

Abstract

The application of deliberate blindness in the Brazilian scenario, as indirect evidence in tax matters, whether in the investigation of crimes against the tax order or in administrative proceedings for tax credit constitution, is a subject that has been having repercussions in the judiciary. From major criminal cases that have gained repercussions in the media, such as the Central Bank Robbery, Monthly and most recently Operation Lava Jato, the theory of deliberate blindness or the doctrine of willful blindness has gained adherence and consequently migrated to other areas of law, such as Tax Law. As in the tax administrative processes of tax credit constitution the sharing of the evidential material produced in criminal investigations is very common, the foundation of the application of the deliberate blindness theory also became the object of sharing. Therefore, it was hypothesized to inquire how the aforementioned theory has been applied in tax matters in Brazil. At first, it is proposed to analyze how and under what conditions indirect evidence is used in tax matters. In the following, the theory of deliberate blindness will be explored, starting from its original premises, and its relation with the Tax Law. Finally, it will seek to understand the application of this theory in the Brazilian scenario and its repercussions. It is thus concluded that the importation of foreign institutes, such as the theory of deliberate blindness, must observe the legal system to which it will be inserted, under the risk of violating the fundamental right and guarantee guaranteed by the Federal Constitution of 1988. This article used the study in a bibliographic approach, a qualitative and exploratory methodology was undertaken through the inductive method.