ANÁLISE DA AUSÊNCIA DE NOTIFICAÇÃO DO CORRESPONSÁVEL TRIBUTÁRIO, NO PROCESSO ADMINISTRATIVO E SEUS EFEITOS NA NULIDADE PROCESSUAL: ESTUDO A PARTIR DE UMA DECISÃO LIMINAR.

Abstract

This paper analyzes the nullity of the tax administrative process due to the lack of notification of the co-responsible taxpayer, from the perspective of the constitutional guarantees provided for in article 5, items LIV and LV, of the Federal Constitution of 1988. The research is based on a specific case in which the preliminary decision issued in the first instance and confirmed in the second instance recognized the irregularity of the tax assessment, since the tax authorities notified only the legal entity, without extending the summons to the managing partners, configuring a restriction of defense. The lack of notification compromised the principle of full defense and adversarial proceedings, making the validity of the tax assessment questionable. The research used the inductive method, starting from the analysis of the specific case to understand its general impact on tax administration. It was found that the legislation requires the identification and qualification of all taxpayers, in accordance with articles 142 of the CTN and 40 of State Law 10.094/2013, in addition to the need for concrete evidence regarding the liability of the managing partner, in accordance with article 135 of the CTN. The court decision reinforced that the tax authorities cannot presume the liability of the partners, and that it is essential to present evidence that proves the existence of acts involving excessive powers, violation of the law, the articles of association or the bylaws. In addition, the failure to notify the jointly responsible parties compromises the legality of the procedure and makes it impossible to collect the tax credit. The study demonstrated that the defense's actions focused on the nullity of the infraction notice due to non-compliance with constitutional guarantees, without addressing the merits of any violations by the administrator. It is concluded that the tax authorities must observe the principles of legal certainty and legality, guaranteeing the right to defense of those involved, under penalty of nullity of the tax assessment and impossibility of demanding tax credit.