AUSÊNCIA DE PROCEDIMENTO ESPECÍFICO NO ÂMBITO DO PROCESSO ADMINISTRATIVO PARA APURAÇÃO DA RESPONSABILIDADE TRIBUTÁRIA DO SÓCIO GERENTE PREVISTA NO ARTIGO 135 DO CTN E OS PRINCÍPIOS DO CONTRADITÓRIO E DA AMPLA DEFESA

Abstract

The present work aims to analyze the attribution of tax liability to the individual partners and administrators of a legal entity, based on the provision of Article 135, III, of the Brazilian Tax Code (CTN), without the tax administration conducting the appropriate administrative procedure to ascertain unlawful conduct. To this end, it will consider the following premises: the establishment of the tax credit occurs, according to Article 142 of the CTN, through tax assessment, an act in which the elements of the tax relationship, including the subjective passive element, are derived from the general and abstract norm; altering the subjective passive element creates a new relationship; tax assessment is an administrative act and, therefore, must be reasoned as a validity requirement; and the Federal Constitution of 1988, in Article 5, items LIV and LV, guarantees the right to due process, broad defense, and adversarial proceedings to litigants, including in administrative processes.The study will outline the manner and extent to which the attribution of tax liability—without a specific procedure to determine its criteria and thoroughly prove the unlawful conduct of the legal representative—violates the principles of due process, broad defense, and adversarial proceedings, as well as contradicts the understanding contained in the systematic interpretation of Articles 135 and 142 of the CTN.