Responsabilidade tributária por sucessão empresarial – aspectos controvertidos da aquisição de elementos de um fundo de comércio ou estabelecimento comercial

Abstract

The Tax Responsibility for business succession in the acquisition of commercial establishments or goodwill is typified in article 133 of the National Tax Code, being a normative instrument of paramount importance, both from a view of fiscal and economic policy. That is because the mentioned phenomenon may or may not transfer the burden of paying the tax credit from one original debtor to the other if the acquisition of the commercial establishment or goodwill from the first to the second is evidenced. By the exegesis of the norm we can see that the application of the said commandment in concrete cases depends on the analysis of the concepts of private law that are outlined in its caput, making necessary a scattered interpretation of the terms, commercial establishment and goodwill. In addition, it is necessary to understand when the actual acquisition takes place, what obligations will be covered by the successor and what the evidential framework that should be used to prove this situation. In this sense, the present study aims to analyze the application of tax liability in controversial cases, based on an analysis of the institutes of private law, in order to provide greater legal certainty the relations evidenced between the tax authorities and taxpayers.