I must, do not deny, and do not pay! This is the motto of the so-called “hard debtor”, an unethical entrepreneur who, unlike the eventual debtor, fails to collect taxes systematically, with the premeditated intention of obtaining competitive advantage, generating
thus competitive imbalances.

As inefficient entrepreneurs, who only work by not paying taxes, they generate a (illegal) benefit and only survive on the basis of an artificially achieved cost.

In sectors with a high tax burden (fuels, cigarettes, beverages and medicines), of immediate consumption and low margin of return, the fact of not paying taxes gives the debtor entrepreneur an abysmal competitive advantage.

Just to give you an idea, on a pack of cigarettes sold at R $ 3, taxes reach R $ 2. Similarly, on a liter of gasoline C, whose cost to the final consumer is around R $ 3,50 , 2, the Treasury gets R $ XNUMX.

A question always arises when discussing this issue: how do these companies remain for so long on the margins of legality? Despite the evident absurdity, the explanation is simple. The regular debtor needs tax litigation with the tax authorities to extend his stay in the market. Discuss and rediscuss in administrative and judicial proceedings,
sponsors smoky legal theses that confuse justice and public prosecutors.

In a time of economic crisis and large collection deficit, combating the debtor is a necessity to stop the bleeding of non-payment of taxes in sectors with high default rates. Among the country's 500 largest debtors, there are several that
accumulate debts above R $ 1 billion.

They use and abuse the slowness of Justice, the bureaucracy of tax authorities, using the traditional jurisprudence of the Supreme Federal Court that prohibits the Public Power from applying political sanctions to collect taxes. Such precedents come from a time when there was only the figure of the eventual debtor, the one who fails to pay taxes for a momentary, temporary difficulty, whose overcoming puts him back to normal. In this case, an installment program generates positive results.

The debtor often acts contrary to ethics. Failing to pay the tax debt is part of the deal. The loss of tax revenue to the tax authorities is permanent, it will never recover. The assets of these companies, normally hidden in the name of "oranges", feed corruption, organized crime and money laundering.

The STF's traditional jurisprudence on the prohibition of political sanctions for collection of fees is not applicable in cases of regular debtors. A new chapter opens. In a specific case analysis, the Supreme Court has already understood the
of a cigarette company with large tax debts, thus determining the end of its activities.

In such cases, there is a need to block the business function or to collect taxes in advance. The benefit of the State comes with the preservation of the tax collection. That of society, with an ethical business environment.
In a period of national life when the three levels of government are struggling with a lack of resources, a different look at the debtor is urgently needed.

Tax authorities, prosecutors, the Public Ministry and, especially, magistrates need to be aware of this modern phenomenon. To combat it, we must go beyond the traditional application of tax law. It is essential to preserve competitive ethics and
protect the state.
LUCIANO DE SOUZA GODOY, former federal judge, doctor of civil law from USP, is a lawyer and professor at the São Paulo Law School at Fundação Getulio Vargas

Source: Folha de São Paulo (19/07)