Responsabilidade tributária e o cabimento do incidente de desconsideração da personalidade jurídica – IDPJ

• Ano de defesa: 2024
• Autor(a) principal: Lima Junior, João Carlos de
• Orientador(a): Bueno, Cassio Scarpinella
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Incidente de desconsideração da personalidade jurídica (IDPJ); responsabilidade tributária; Disregard doctrine; Limitação da responsabilidade; Tema Repetitivo 1209 do STJ
• Palavras-chave em Inglês: Incident of piercing the corporate veil; Tax liability; Disregard doctrine; Limitation of liability; STJ repetitive theme 1209
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/42660

The thesis aims to demonstrate the application of the incident of piercing the corporate veil, established in the 2015 Code of Civil Procedure in tax enforcement proceedings, not only to implement the theory of piercing the corporate veil but also to provide hypotheses of tax liability elected by the National Tax Code, in compliance with the constitutional principles of access to judiciary, due process of law, opportunity to be heard, and adversary proceedings. Using an analytical, deductive, and inductive methodology, in its first part the work demonstrates that the institutes of corporate entity, equity autonomy, and limited liability, are products of the historical evolution of the need to safeguard the risks of the entrepreneur due to the fostering role of the State exercised by companies, which makes them not easily despised. In the second chapter, the thesis delves into the issue of piercing the corporate veil, which occurs when there is a misuse of purpose in the use of the company's character; as a consequence, the character is disregarded episodically, leading to the partial removal of the effectiveness of equity autonomy, regarding the possibility of the existence of limited liability. So, in the end, piercing is a technique for assigning liability. The conclusion reached in this second part of the study is that there are four different techniques for assigning liability (based on the type of company; direct liability through legal imputation; piercing of the corporate veil; and minor theory of veil piercing), which can be reduced to two groups (disregard and legal imputation), and finally, just one technique (legal imputation). In the third part, the article justifies the introduction of the Incident of Piercing the Corporate Veil as a reaction to the latent crisis of limited liability, as well as analyzes numerous characteristics of the incident that influence its application in tax enforcement proceedings, in cases of tax liability, such as, but not limited to, the hypotheses of its application and the possibility of its waiver if requested in the complaint. After demonstrating the compatibility between the procedural incident of piercing and tax enforcement, the paper discusses, as a reinforcement of the idea that the Incident of Piercing the Corporate Veil can be used in tax enforcement proceedings, the defects that exist in the mere redirection of tax enforcement, as it is nothing more than execution without title, which violates the structure of the tax incidence standard and disrespects constitutional procedural principles. In the fourth chapter, the proposal is to debate the application of the Incident of Piercing the Corporate Veil in the cases of tax liability set out in the National Tax Code. To this end, the comparative method is initially applied, aligning the liability techniques, their intersections, and the differences as a whole, in order to justify the lack of grounds for the differentiated application of the procedural incident. Next, the study elaborates on three criteria for attracting the piercing of the corporate veil and then reduces it to just one: the need to produce evidence to prove the event that leads to tax liability. With the criteria in hand, it visits one by one the tax liabilities contained in articles 128 to 137 of the CTN (National Tax Code), to conclude that it is necessary to apply the incident of piercing the corporate veil in tax enforcement, to hold the partner, manager or third party liable for the company's tax credit, not only regarding the cases covered by article 50 of the Civil Code, but also in the cases provided for in art. 132, sole paragraph, article 133, items I and II, article 134, items III and VII, article 135, items I, II, and III, and article 137, items I, II, and III, all of the National Tax Code.