Author: Cid Heraclito de Queiroz

Source: O Estado de S. Paulo, 03/06/2009

Farmers must make every effort to collect tax debts, but they must not forget that, under the rule of law, they must treat taxpayers civilly and never assume that everyone is an effective or potential tax evader. In the fruitful administration of Minister Delfim Netto in the Ministry of Finance, the Federal Revenue Secretariat was created, which soon developed an inspired Tax-Taxpayer Integration Program, so that they could be informed about their rights and oriented to fulfill their duties. tax.

For the collection of tax debts, the Public Treasury has the guarantees and privileges listed by the National Tax Code and a special legal action, tax enforcement (Law No. 6.830 / 80, prepared by a commission of attorneys for Finance and the Republic), in which the taxpayer 's defense must be preceded by a guarantee by means of a cash deposit, bank guarantee or offer of own or third party assets for attachment. The enrollment of the debit in the Active Debt Registry implies the presumption of certainty and liquidity of the tax credit, has the effect of pre-constituted proof, suspends the prescription and prevents the supply of negative certificates. The law typifies and punishes crimes against the tax order.

In such conditions, the violence of the National Treasury against taxpayers cannot be tolerated, such as:

To protest the tax debt, already represented by a privileged title, the Active Debt Certificate;

include taxpayers in the register of civil and commercial debtors maintained by private entities;

delegate to private banking entities the friendly collection of active debt;

make the so-called “online attachment” of bank account balances. And now, surprisingly included in the annexes of the “II Pact of the Republic”, the administrative pledge (by order not of a judge, but of an official) of debtors' assets.

The protest, besides being unnecessary, is not, in this case, authorized by law and imposes on the taxpayers the burden of notary costs. The private registrations of defaulters provide services to banking and commercial establishments, registering their clients' untimely circumstances. They have nothing to do with the tax credit. The inclusion of taxpayers in this register violates the constitutional guarantee of inviolability of intimacy and private life. With their name inscribed on protest offices and private credit protection entities, taxpayers will be confused with debtors of commercial installments and other commercial or civil debts. The delegation to banking entities of the friendly collection of the Active Debt of the Union violates the constitutional competence of the Attorney General of National Treasury, established in our Constitution thanks to the performance of the whole class of attorneys and parliamentarians of the size of Euclides Scalco, Nelson Jobim , Roberto Brant, Bonifácio de Andrada, Francisco Dornelles, Bernardo Cabral, José Serra, César Maia and others. The law only admits two types of tax debt collection: amicably, by the Federal Revenue Service or by the National Treasury Attorneys, or judicially, through tax enforcement.

The online attachment of bank account balances is abhorrent because, regardless of the tax authorities' privileges, citizens have constitutional obligations with housing, food, education and health of their families and the payment of taxes (IPTU, IPVA, Income tax). Such a measure resembles an assault. And the administrative pledge blatantly violates the constitutional guarantees relating to the right to property (article 5, XXII) and the deprivation of citizens' assets without due legal process, necessarily judicial (article 5, LIV). It is suitable for a dictatorship.

These measures undermine the dignity of taxpayers and constitute degrading treatment and “fiscal torture”, which the Constitution (article 5, III) repels, giving rise to the appropriate indemnity (article 5, XLIII). Torture is not just the violence practiced in police dungeons, in the basements of dictatorships or in the dens of bandits. Torturing means pleading, imposing suffering, afflicting, tormenting someone in any way. It is the great torment of the spirit (according to Houaiss and Aurélio). Scorching fines, suffocating bureaucracy and, above all, abusive actions that violate citizens' constitutional guarantees are forms of fiscal torture.

These measures, on the other hand, constitute a true “factory” of legal proceedings, by inducing taxpayers to bring actions to annul abusive acts and seek due compensation. As, at the federal level, the number of tax foreclosures increased spectacularly, from 45.493, in the amount of R $ 2,8 billion, in 1990 to about 2 million, in the amount of R $ 651 billion, at present, it is evident that the Federal justice will literally be paralyzed.

In fact, this huge number of tax debts is due to:

the extremely high tax burden (40% of GDP);

tax fines of 50%, 100% and 150% on the amount of the tax, incompatible with economic activity and the stabilized currency;

fiscal bureaucracy that misleads taxpayers;

inadequate taxable facts, calculation bases and rates;

default on taxpayers' credits;

inflexible tax system, even in social or economic crises;

and lack of a clearing house between Active Debt (tax credits) and Passive Debt (precatories, remnants to be paid, etc.).

The Nation has to react to such violence, which is not in keeping with the constitutional and democratic practices or the peaceful spirit of the Brazilian people.

Cid Heraclito de Queiroz, lawyer, was Attorney General of the National Treasury