by Hamilton Dias de Souza

 

1. Introduction

Practices of economic agents of a fiscal nature have been observed for a long time that harm the market. Such practices include the intentional and systematic default of taxes, the abusive use of judicial measures (concession and injunctions in reckless actions, without enough assets to satisfy the debt in the future) and tax evasion (false declarations, under-invoicing, smuggling, embezzlement) etc.). Often, such practices are associated with organized crime, involving adulteration and counterfeiting (piracy) of products.

These practices affect innumerable sectors of the economy, especially those where large volumes of products are traded, with reduced profit margins, considering that the artificial reduction of prices (due to the suppression of taxes) makes it possible to grab a market share that provides quick gains. and expressive, as occurs, quite frequently, in the cigarette, fuel and beverage sectors [1].

The performance of entities such as Brazilian Institute of Competition Ethics(Etco) has made it possible to publicize these practices and raise public awareness of their harmful effects, not only for the treasury but also for competition and the economy as a whole. There are studies that estimate the informal movement of goods and services at R $ 983 billion, just in 2016 [2]. This is the dimension of the problem, which affects the allocation of resources, creating an underground economy, which contributes to the country's current social, political and economic deterioration.

In view of this, public entities, especially the states, have sought to create special rules for the control of business practices of a tax nature that affect the market [3].

2. Political sanctions are not to be confused with sanctions for unlawful acts

However, there is strong resistance to the application of special inspection and taxation regimes, as well as to the adoption of more drastic measures against debtors. Normally, it is alleged that the Supreme Federal Court has peaceful jurisprudence prohibiting the use of any means of inspection and collection of taxes that prevent or hinder the exercise of business activities, in order to compel the taxpayer to comply with its tax obligations. The understanding, reflected in overviews 70, 323 and 547 [4], is based on the principles of freedom of initiative, proportionality and due process [5] [6] [7].

In fact, what the jurisprudence of the Supreme Federal Court prohibits are the so-called political sanctions, thus understood “the unreasonable or disproportionate restrictions to the exercise of lawful economic or professional activity, used as a form of induction or coercion to the payment of taxes”, reason why “the guidance signed by the Supreme Federal Court does not excuse deliberate and reckless disregard for tax legislation. There is no need to talk about political sanctions if the restrictions on the practice of economic activity aim to combat corporate structures that have systematic and conscious tax defaults as their greatest competitive advantage ”[8] [9].

As it turns out, the Federal Supreme Court distinguishes between debtors who exercise their economic activities in a lawful manner and, therefore, have the full protection of constitutional principles mirrored in overviews 70, 323 and 547; and debtors who act illegally in the market, through intentional and systematic non-payment of taxes, and who do not enjoy constitutional protection against the adoption of different instruments for the control and collection of tax credits, as they practice a true “macro-delinquency” repeated tax ”, in the words of Minister Ricardo Lewandowski.

Indeed, the Law is conceived predominantly as a coercive order [10], in order to induce the conduct desired by society, "providing coercive acts as sanctions in the case of the opposite conduct" [11]. Thus, if the act is unlawful, the sanctions established by the legislator will be a mere legal consequence of the realization, in terms of facts, of the hypothesis abstractly forbidden in the norm. Therefore, political sanction cannot be considered. In these situations, the sanctions will be the response of the Law to the anti-legal act practiced by the taxpayer.

The lawfulness of the conduct is, therefore, the criterion that allows the selection of taxpayers who may or may not be subject to restrictions in the development of their activities, due to the eventual default of tax obligations. The degree of the restriction, whether total or partial, will depend on the establishment of a regular process for the examination of each situation and the appropriate measure to regulate it, in accordance with the principles of due process and proportionality.

Thus, it is essential to separate the different types of debtor in order to verify whether the restrictions imposed on them due to the default of tax obligations are characterized or not as political sanctions, or whether they are reasonable, depending on the nature and effects of the conduct.

3. Types of debtor: eventual, repeated and repeated

In this sense, it is possible to identify three types of debtor: the eventual one, who, for whatever reason, fails to collect taxes for indefinite periods; the repeated, which often fails to collect taxes, as a way to finance its activities (it stops paying taxes instead of resorting to bank loans for working capital, for example), or even due to structural market conditions ( economic crisis), or by pure speculation stimulated by successive installment programs (Refis, Pert, etc.); and the contumaz, who intentionally and systematically fails to collect taxes, in order to move about and distort competition.

The first two types of debtor (eventual and repeated) act lawfully in the market and must undergo the normal debt collection procedure (inscription in active debt, tax enforcement, listing of assets, fiscal precautionary measure, CDA protest, etc.), in principle, they cannot suffer any restriction on the freedom of initiative aimed at forcing them to fulfill their obligations. It is possible, however, that the repeated lack of payment of the tax ends up inflicting losses on third parties, for example, if prices are artificially reduced to the point of hindering the performance of competitors. In this case, the repeated debtor may be subject to special tax inspection and collection regimes, to the strict extent necessary for the normalization of the market [12], in the form of Article 146-A of the CF [13].

The situation of the third type of debtor (debtor) is absolutely different. This acts in the field of the illicit. These are criminals, not businessmen, who abuse the legal entity as a front to never pay taxes and thereby gain competitive advantage, among others. To do so, they violate the law on a daily basis, practicing numerous illicit acts, usually through the use of oranges, address registration and false partners, invariably possessing insufficient assets to satisfy tax, labor and other obligations. Therefore, they must be prevented from acting. The right to them does not help, except for the procedural guarantees provided for in the constitution related to due legal process, broad defense and adversarial proceedings. Once the contumacy of the conduct is determined, it must be repressed, in a rigorous and exemplary manner, through legal sanctions that prevent the continuation of the agent's activities (interdiction of the establishment, revocation of registration in the taxpayer register), in order to preserve the treasury and the market, which has free competition as one of its fundamental principles, as an inseparable link of free enterprise [14]. After all, what the Constitution guarantees is the freedom of initiative for the development of lawful activity, never the practice of activities in an illegal way [15].

4. Conclusion

In conclusion, it is necessary to distinguish tax debtors in order to specify the legal treatment that should apply to them:

(1) to eventual debtors, scoresheets 70, 323 and 547 are fully applied, and it is not possible to impose political sanctions as a means of collecting taxes;

(2) the repeated statements of the Supreme Court are also applied to the repeated debtors, however, their flexibility is possible, when management proves, having observed due legal process, that the tax default has affected the market, in order to guarantee tax neutrality. (article 146-A of the CF); and

(3) protection against summary statements does not apply to regular debtors, and the State must establish legal sanctions that prevent the unlawful performance of these agents in the market.

[1] Approximately R $ 4,8 billion are not collected annually in the fuel sector (FGV), with R $ 18 billion being registered in federal debt with respect to the tobacco sector (PGFN) and R $ 1,8 billion enrolled in active debt only in the state of São Paulo, with respect to the soft drink sector.

[2] https://www.etco.org.br/economia-subterranea

[3] The states of Rio Grande do Sul, Pernambuco and Bahia, among others, have specific legislation to curb these practices. There is a direct action of unconstitutionality before the Federal Supreme Court questioning this type of measure (ADI 4.854-RS).

[4] "Precedent 70. The prohibition of establishment as a coercive means for collecting taxes is inadmissible."

"Precedent 323. The seizure of goods as a coercive means for paying taxes is inadmissible."

"Precedent 547. It is not lawful for the authority to prohibit the taxpayer in debt from acquiring stamps, dispatching goods through customs and carrying out their professional activities."

[5] In RE 39.933 Segundo / AL, the STF declared the provision contained in the municipal tax code that allowed the seizure of goods for payment of taxes to be unconstitutional. It was understood that it is not up to the public entity to “do justice by hand if the law establishes the fiscal executive action, for the collection of the active debt of the Public Treasury in general” (Pleno - Min. 13/04).

[6] In RE 9.698 / GB, the STF considered the prohibition of commercial establishments to be unlawful in order to compel the taxpayer to pay taxes or fines. , the prohibition of its establishment, as a penalty intended to compel it to pay the debt. Now, the City Hall of the former Federal District - today of the State of Guanabara - has a regular and adequate means for the collection of the debt, which is the fiscal executive. What is not lawful, as it constitutes a procedure contrary to the law and the rule of law in which we live, is the drastic: - ban on the activities of the petitioner ”(Full - Min. Henrique D'Ávila - DJ: 05/11 / 1962).

[7] RE 413.782 / SC stated that the tax authorities' refusal to provide invoices due to the fact that the taxpayer has tax debts, requiring the use of separate invoices for each operation, “contradicts (…) the guarantee of the free exercise of work , office or profession - item XIII of article 5 of the Charter of the Republic - and of any economic activity - sole paragraph of article 170 of the Federal Constitution ”. In addition, it was reaffirmed that “the State cannot use indirect means of coercion, converting them into instruments for adjusting the tax relationship, for, in function of them - and through interdiction or severe restriction on the exercise of business activity, economic or professional - embarrass the taxpayer to comply with tax obligations that may be in arrears ”(Full - Rel. Min. Marco Aurélio - DJ: 03/06/2005).

[8] Full - RE 550.769 / RJ - Min. Report Joaquim Barbosa - DJe: 02/04/2014.

[9] This understanding was ratified by the STF when declaring the constitutionality of the Active Debt Certificate protest (ADI 5135 / DF, Rel. Min. Roberto Barroso, J. 3 and 9.11.2016).

[10] “In the general theory of contemporary law, the repressive conception of law is still dominant. Whether the force is considered a means to obtain maximum respect for the (primary) norms of the system, or whether it is considered as the content of the (secondary) norms, the dominant conception is certainly the one that considers the law as a coercive order, thus establishing , a necessary and indissoluble link between law and coercion. This translates into the exclusive importance given to negative sanctions: coercion is itself considered a negative sanction, or else, the extreme means to make effective (negative) sanctions, predisposed by the order even for the conservation of the normative patrimony ” (BOBBIO, Norberto. From structure to function: new studies of theory of law. 1. Ed. Barueri: Manole, 2007. Translation by Daniela Beccaria Versiani, p. 7).

[11] KELSEN, Hans, What is Justice? Justice, law and politics in the mirror of science; translation Luís Carlos Borges, - 3rd Ed. - Sâo Paulo: Martins Fontes, 2001, p. 286.

[12] “(…) the rule is the freedom to exercise economic activity, as a corollary of free enterprise, in which the State must not interfere in the voluntary manifestation of its citizens for that purpose. However, this does not mean that the State, in cases where the interest of the community is evident, cannot regulate economic activity, imposing requirements for its rational exercise, even acting with the power of administrative police to enforce and implement such measures, and such device to be interpreted systematically with the other constitutional precepts of economic law ”. (FIGUEIREDO, Leonardo Vizeu. Lessons in Economic Law. 4. ed. Rio de Janeiro: Forense, 2011. p.65-66)

“(…) Free enterprise is not synonymous with absolute economic freedom (…). What happens is that the principle of free enterprise, inserted in the caput of art. 170 of the Federal Constitution, is nothing more than a general clause whose content is filled in by the items of the same article. These principles clearly define freedom of initiative not as an anarchic, but as a social freedom, which can, consequently, be limited ”(SALOMÃO FILHO, Calixto. Regulation of Economic Activity (legal principles and foundations). São Paulo: Malheiros, 2001. pp. 93-94).

[13] “Art. 146-A. Complementary law may establish special taxation criteria, with the objective of preventing competition imbalances, without prejudice to the Union's competence, by law, to establish norms with the same objective. ”

[14] “Regular tax defaults are a type of default that is prolonged over time, often planned by the taxpayer, which ends up having harmful effects in terms of competition, not to be confused with that occasional and sporadic default, as a result of the company's financial difficulties. , which in no way affects free competition. (…) This kind of individual conduct goes beyond the limits of freedom of initiative and free competition, and does not deserve to be protected by the legal order, as it places the defaulting person in a privileged position in relation to its competitors in the market, since, not burdened by taxation, can offer its asset at a substantially lower cost or make unjustified profits ”. (LIMA, Ricardo Seibel de Freitas. Free competition and the duty of tax neutrality. 2005. 143 p. Dissertation (Master in Law) - Federal University of Rio Grande do Sul. Porto Alegre: 2005).

[15] “In these cases, in view of the abnormal conduct, the way of combating such action, which directly affects the right to competition and the market rules, cannot be based on simple judicial collection, since planning and abuse of taxpayer status. The measures that are required, in this case, are to stop the damage, and not to attempt to recover the damage. This is because the damage to lawful competition has already been consummated, and cannot be recovered in tax enforcement ”(MÖLLER, Max. Political sanction and special inspection regime. Thesis presented at the XXXIX National Congress of State Attorneys. Http: // anape. org.br/site/wp-content/uploads/2014/01/TESE-2-AUTOR-MAX-MOLLER.pdf)

Hamilton Dias de Souza is a founding partner of Dias de Souza Advogados Associados, a master and specialist in Tax Law at the Faculty of Law of the University of São Paulo (USP) and a member of the ETCO Advisory Board.