O processo administrativo necessário e prévio à imputação de responsabilidade tributária sob a ótica do devido processo legal

Abstract

In a broad sense, everything related to the protection of life, property or liberty is covered by the due process clause, which is a central element in the elaboration of the concept of the rule of law. In terms of tax liability, it is up to the Treasury to demonstrate the causes for the transfer of responsibility, the conduct that justifies it, as well as carrying out a process with the purpose of legitimizing the inclusion of a third party in the passive pole of the legal-tax relationship. It is essential that the substantive due process is observed, applicable in the assessment of substantive law, and procedural law, which protects rights through procedural regulations. In Ceará, only with Decree n. 33,059, of May 10, 2019, instituted the administrative procedure for attributing tax liability. This study, based on the hypothetical-deductive method, through empirical, qualitative and quantitative research, through bibliographical and documentary research, aims to investigate how the new procedure will reflect on the transfer of tax liability to third parties for tax credits owed by legal entities. Initially, the due process clause is investigated, explaining its historical foundation, its origin and development, its presence in the Brazilian model, the procedural and substantial approach addressed by the doctrine, the resulting fundamental rights and its application in the administrative process. In the second chapter, it deals with the material aspect of tax liability, the factual circumstances that justify it, through the study of the insertion of the institute in Brazilian legislation and the provisions of the National Tax Code of 1966. In the third chapter, the tax liability is approached from the procedural aspect, for which it is explained about the assessment, the burden of proof of the Tax Administration, the administrative process as a key element for the transfer of tax responsibility and the federal regulation regarding the matter (Normative Instruction No. 1.862/2018). Finally, the results obtained from the empirical research are presented, with a comparative analysis between the period comprising the three years before and the three years after the beginning of the Decree's effectiveness. It is concluded that the state norm managed to reduce the frequency with which third parties are held responsible in infraction notices, but this was not reflected in the certificates of active debt. The research revealed, therefore, that the content of the certificates is not consistent with the content of the physical administrative processes, which compromises the certainty of their content.