Os efeitos da prescrição intercorrente diante da inércia da fazenda pública nos redirecionamentos das execuções fiscais

Abstract

The present work proposes to analyze the tax obligation, addressing, among other characteristics, the differentiation between so-called taxpayers and taxpayers provided for in the legislation as taxpayers of the obligation, going from the birth of the obligation with the generating fact described in the standard and, later, with the constitution of the tax credit, until the redirect of the tax with the consequent intercurrent prescription; is established as a cause of extinction of the tax credit, in the face of the inertia of the Public Treasury in the course of fiscal executives, for the course of five years without there being any useful or effective measures that can guarantee debt satisfaction. In addition, it was verified the beginning of the counting of the prescription period during the fiscal execution, in the light of the actio nata theory. Given the relevance of the prescription institute, a study was made through the jurisprudence of the Brazilian courts, examining the application of the possibility of extending the effects of intercurrent prescription, especially when there is redirection of the exaction to the partners of companies that, after the appellate court is dissolved irregularly, verifying that, although there is no consolidated understanding in the courts, the Superior Court of Justice has already judged by the extension of the use of the effects of intercurrent prescription for debtors in solidarity with an exaction. In this sense, the hermeneutic and theoretical method was studied in the study of how doctrine and jurisprudence interpret the liability of the partners established in articles 134 and 135, of the National Tax Code and how the effects of intercurrent prescription are interpreted, mainly, in what refers to the possibility of taking advantage of the effects provided for in article 125, III, of the CTN.