Responsabilidade por aquisição de fundo de comércio: uma sistematização das divergências doutrinárias e do entendimento dos tribunais brasileiros na perspectiva da possibilidade de fraude à sucessão tributária

Abstract

The institute of tax liability represents, to the government, an extra way of charging its taxation. However, specifically in regards to the liability for acquisition of assets, the redaction of the National Tax Code article which regulates the liability in question is extremely imprecise, allowing several interpretations, many of which facilitate tax evasion and, consequently, frustrate the legitimate expectation of compliance with the tax liability. A few currents of thought, however, by utilizing less restrict methods of interpretation, manage to grant more applicability to said institute, making it harder to commit tax evasion and tax fraud in the tributary-corporate field, without hurting the constitutional principles that protect the tax-payers’ rights. The present work’s goal is to make a brief compilation of doctrines and court rulings, since the last word on the application of the laws belongs to the Judicial Power, of the main controversies about the interpretation and configuration of the article 133 National Tax Code, as well as other articles that may help in the creation of a line of thought that may difficult the tax fraud before or during the judicial charging procedures of taxation. The study was developed by way of bibliographic and documental research, the material utilized included: books, thesis, academical papers, magazine articles, laws and court rulings. The results obtained showed that most doctrinal currents still defend a very conservative position on the matter of the application of the liability analyzed, however, some Courts and even the Superior Court of Justice already have sentences in which, for example, the presumption of succession is accepted, which is promising in the perspective of the mitigation of tax-fraud. The conclusion reached was that there is a certain caution on the part of the people responsible for applying the law in regards to the committing of abuses on the attribution of tax liability, preferring not to risk disobeying the constitutional principles that rule the subject.