Protesto de cda e averbação pré-executória como meios extrajudicias de cobrança: a inversão dos sujeitos processuais e a acentuação na vulnerabilidade do contribuinte

Abstract

The aim of the research is make a critical analysis about the protest of CDA and the pre-execution annotation as extrajudicial collection measures used by the National Treasury to pursue the tax credit fulfillment, answering if its implementation burdens the taxpayer to the point of violation of your fundamental rights. The problematization is fomented by verifying the inversion of subjects responsible for the jurisdiction, because with the use of these extrajudicial mechanisms the National Treasury no longer pursues the tax credit for the tax execution or, at least, reduces its employment, transporting to the taxpayer burden to seek the judiciary to undo any excesses in the use of these administrative sanctions. Considering this paradigm shift, it is questioned whether the prerogatives that the National Treasury has when litigating in court and the obstacles that taxpayers face to access the jurisdiction do not increase asymmetry between these parties, placing the taxpayer in a position of extreme vulnerability. It was concluded that the arguments used by the tax authorities to justify the application of the CDA protest and the pre-execution annotation, despite giving a greater appearance of legitimacy in the implementation of these measures, cause a harmful violation of the taxpayer's fundamental rights and should be rejected. its application in the current molds. The use of these means, as they fit the definition of self-protection and do not resolve the conflict in its genesis, reduces the amount of tax foreclosures, but increases the need for the taxpayer to seek support from the judiciary, an institution discredited by the State. The situation of vulnerability is accentuated, as there is a lack of clear limits to the application of these means to the detriment of recalcitrant taxpayers, which indicates the purpose of the tax authorities to only pursue indirectly the payment of tax credit. It is suggested that the efforts of the National Treasury should focus on measures aimed at preventing the conflict between tax authorities and taxpayers in a preventive manner, or those that actually manage their resolution outside the judiciary, as well as by simplifying taxation. In the methodology, papers and works related to the theme were researched, as well as legislation, jurisprudence - especially of the higher courts - and statistical data collected by IPEA and National Council of Justice. The collected material was submitted to a critical-constructive analysis, in order to confront contradictory arguments to present viable proposals to solve the presented problem.