Dissolução irregular: quem deve ser o responsável tributário para fins de redirecionamento da execução fiscal

• Main Author: Lima, Débora Freire de
• Publication Date: 2019
• Format: Bachelor thesis
• Language: por
• Source: Repositório Institucional da PUC_SP
• Download full: https://repositorio.pucsp.br/jspui/handle/handle/33820
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO TRIBUTARIO; Responsabilidade tributária; Dissolução irregular; Sócio; Administrador; Execução fiscal; Redirecionamento da execução fiscal

The purpose of this monograph is to analyze the liability of third parties, in particular that regulated by article 135 of the CTN, in order to verify against which partner or managers of the company should be liable for tax obligations in case of redirection of the fiscal execution, when based on the certification of the irregular dissolution of the company during the course of the executive process. A docket number 435 of the STJ includes the irregular dissolution in the list of article 135 of the CTN as a cause capable of giving rise to the responsibility of the managing partner for the tax obligations, on the grounds that the irregular dissolution would be a violation of the law, since there are legal procedures to extinguish the entity. The criticism, however, emphasizes that the irregular dissolution could not be framed in article 135 of the CTN, since for said device the responsibility of third parties would be only on the obligations resulting from acts committed with excessive powers or infraction of law, social contract or statutes, in this way, being prior to the birth of the tax obligation, which does not occur in the dissolution of the company, since in addition to occurring later, does not generate any tax liability arising. Addressing the issue of liability of the managing partner when the company is dissolved is extremely important, given that there is still no consensus in the case law, which leads to the existence of several positions, causing legal uncertainty. In view of this, the STJ has recently affected the subject for trial under the rite of repetitive appeals (Topic n. 981), in order to settle the controversy Within the survey, it will be possible to identify the most common understandings about who should fall into the tax liability with the redirection of tax execution, being: to the managing partner at the time of the legal-tax event; to the managing partner at the time of the irregular dissolution and to the partner who has accumulated the function of manager both at the time of the accomplishment of the juridicaltributary fact and at the time of the irregular dissolution. Thus, these positions will be analyzed in order to demonstrate the most adequate and reasonable for the correct application of the tax liability of the managing partner or manager