Banca de QUALIFICAÇÃO: DANYELLE RODRIGUES DE MELO NUNES

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
STUDENT : DANYELLE RODRIGUES DE MELO NUNES
DATE: 07/07/2021
TIME: 19:00
LOCAL: MACEIÓ
TITLE:

DELIMITATION OF TAX LIABILITY PROVIDED FOR IN ITEM III OF ARTICLE 135 OF THE NATIONAL TAX CODE: THE CONSTRUCTION OF THE MATRIX RULE OF TAX LIABILITY OF THE ADMINISTRATOR IN THE CONTEMPORARY CONTEXT OF CORPORATE GOVERNANCE

KEY WORDS:

Responsibility; Tax; Compliance; Administrator; Subsidiarity

PAGES: 190
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUBÁREA: Direito Público
SPECIALTY: Direito Tributário
SUMMARY:

The National Tax Code, in its article 135, item III, determines that the directors, managers or representatives of legal entities governed by private law are personally responsible for the credits corresponding to tax obligations resulting from acts committed with excess of powers, violation of law, social contract or statutes. On one hand, the text of this legal act operates as an interpretative vector and gives the guidelines about the identification of the subjects, the kind of responsibility that falls to them and the object for which they are responsible. On the other hand, the corresponding legal norm of tax liability is constructed from the analysis of other textual elements,and also of non-textual elements so that it can be applied to the specific case and resolve the conflicts of interest inherent to the development of tax legal relationships. Although the discussions on this mechanism relate to the last thirty years of jurisprudence in the High Court of Justice and it is important to recognize that there have been many developments, there are still many irregularities in its application. The controversies surrounding the theme of tax liability of the administrator have demanded an analysis that goes far beyond the text of the National Tax Code, in its article 135, item III, and reaches the new rules on business management. In this context, it is questioned: how to interpret the matrix rule of tax liability of the administrator in the contemporary context of corporate governance? The hypothesis is that the material criterion of its antecedent goes beyond the practice of acts with excess of powers, violation of the law, social contract or statutes that result in tax obligations, and also reaches those acts that do not result in tax obligations, simply that they are associated with it, as those practiced with the purpose of preventing, delaying, hindering, modifying or excluding the matrix rule of tax incidence and the payment of the respective tax credit. Therefore, its material criterion is directly linked to the absence of tax compliance and to the practice of tax corruptive acts. In addition, its personal criterion is composed of two taxable persons, the administered legal entity, as a taxpayer, and the natural person of the administrator, as the person responsible, whose link between them is one of subsidiarity, what meets the tax interest inherent to the Fiscal State model and does not burden excessively the responsible. The objective of the research is to delimit the tax liability provided for in the National Tax Code, in its article 135, item III, by analyzing the legitimacy of the text of this legal act in order to obtain the improvement of the legal norm of tax liability of the administrator in the contemporary context of corporate governance. The theoretical research was developed with a deductive methodology, under the qualitative method, from a bibliographic and empirical document analysis, examining the legislation, especially the Federal Constitution of 1988, the National Tax Code of 1966, the Civil Code of 2002, the Law on Economic Freedom (Law nº 13,874/2019), the Law on Financial Law (Law nº 4,320/1964), the Law of Society for Actions (Law nº 6,404/1976) and the Anti-corruption Law (Law nº 12,846/2013); the doctrine, based on the assumptions established by Paulo de Barros Carvalho, of the aspects raised by Luciana Grassano de Gouvêa Mélo and the thesis developed by Daniel Monteiro Peixoto; and the jurisprudence of the High Court of Justice, complemented by the investigation of concrete cases appreciated by the Administrative Council of Fiscal Resources. At the end of the research, the hypothesis was confirmed and improved by the conclusion on the need to reform the legal text, in order to reduce the margin of misinterpretations in the application of the legal norm of tax liability of the administrator.

BANKING MEMBERS:
Presidente - 2223577 - GABRIEL IVO
Interno - 1653663 - BECLAUTE OLIVEIRA SILVA
Externo à Instituição - BASILE GEORGES CAMPOS CHRISTOPOULOS