Alteração do polo passivo em execução fiscal: limite aos julgadores

Abstract

According to data released on the website of the National Council of Justice - CNJ, judicial demands throughout Brazil have caused a high rate of congestion in the Judiciary, causing State Courts to exceed the 70% (seventy percent) rate of congestion. Among the demands that most impact are the Tax Enforcement actions, with a congestion rate of 87%. Such data stimulate a differentiated behavior by the Courts, aiming at seeking greater jurisdictional efficiency. However, extreme care must be taken in handling demands of this nature, considering that its object is to assist in the composition of the treasury for the realization of public policies in respect of the fundamentals and objectives of the Republic. One of the tools presented to achieve greater procedural efficiency was the sanction of a New Code of Civil Procedure in 2015, which introduced a system that gave greater strength to the precedent system, in order to guarantee a swift and uniform process in the Brazilian judicial system. On the other hand, great care must be taken with the precedents given in the aegis of the previous Codes, in order to verify if the ratio decidendi of the precedent has not been reached in order to withdraw its effectiveness. Precedent 392 of the Superior Court of Justice, as the predominant jurisprudence of that Superior Court, also deserves adjustments in its interpretation that would rule out its massive application by the Courts, especially when considering possible interpretations in a neoconstitutional guise that refers to a possible irresponsibility with the treasury. The specific objective of this scientific research is to demonstrate the possibility and viability of the Public Treasury to continue collecting taxes, without allowing some taxpayers to shirk their tax obligations, hiding behind Precedent 392 of the Superior Court of Justice, in situations that do not fit your application. This research uses the deductive method and is descriptive, explanatory, applied and qualitative nature, in order to consider the use of the mentioned entry for situations that occur before the launch of the tax and in the hypotheses of succession of the tax debt.