TEORIA DO INCIDENTE DA DESCONSIDERAÇÃO DA PERSONALIDADE JURÍDICA NA RESPONSABILIDADE TRIBUTÁRIA DE SÓCIO-GERENTE EM EXECUÇÕES FISCAIS

Abstract

The patrimonial autonomy of legal entities, as established by the Civil Code of 2002, aims to allocate and segregate risks in order to stimulate business ventures, generate employment, taxes, and promote innovation. However, the legal system provides for the possibility of disregarding the corporate personality in cases of abuse, such as diversion of purpose or patrimonial confusion, as per Article 50 of the Civil Code. The application of this institute to hold partners liable in the context of tax execution has generated jurisprudential divergences. The 2nd Panel of the Superior Court of Justice (STJ), in REsp No. 2.035.296, holds that the initiation of the disregard incident is not mandatory, allowing for the redirection of tax execution directly to the partners, while the 1st Panel, in REsp 1.937.390, requires the initiation of the incident in order to redirect the execution to another member of the economic group. This paper aims to analyze the possibility of holding partners personally liable in the context of tax execution and the application of the disregard of corporate personality. The research will be divided into three chapters: the first will address tax collection and the role of taxes in the Fiscal State; the second will discuss the disregard of corporate personality and its theories; and the third will focus on the procedural microsystem of tax execution, including the responsibility of partners and the application of the disregard institute.