Full payment of the tax debt extinguishes the punishment of the accused of tax evasion crime
The 4th Panel of the Federal Regional Court of the 1st Region (TRF1) declared extinct the punishment of a taxpayer who made undue deductions in his income tax return improperly, appropriating tax credits through the crime of tax evasion, provided for in art. 1, I, of Law 8,137/90, as the defendant has fully paid the tax debt that originated the criminal action. The Board considered that the total settlement of the debt is a reason to extinguish the punishment of the accused, having the payment effects equivalent to the prescription of the enforceable claim (loss of the State’s right to punish).
In this case, the man was denounced for making undue deductions in his income tax return. The tax debt was consolidated and definitively recorded in the amount of R $ 3,398.76. The Federal Court of the 2nd Court of the Judicial Subsection of Juiz de Fora convicted the defendant for a crime against the tax order, however, a few days after the conviction the taxpayer made the full payment of the debt.
Before the discharge, the man asked for the extinction of the punishment to the Execution Court, informing that he had made the full payment of the debt. The magistrate denied, understanding that the payment was not a reason to extinguish the punishment, on the grounds that the discharge resulted only in the repair of the damage.
According to the rapporteur, federal judge Néviton Guedes, the Superior Court of Justice (STJ) has already decided that, after the enactment of Law No. 10,684/2003, the total settlement of the tax debt causes the extinction of the punishment of the tax evader the Judiciary being forbidden to establish a time limit, pursuant to art. 9, § 2nd, of the aforementioned Law. Thus, said the magistrate, “there is no way to interpret the referred legal provision in any other way”.
The rapporteur affirmed that, “since the condemnatory sentence became unappealable, the effects of recognizing the extinction of the punishment of the aggravating factor, since it is supervening, must be compared to those of the prescription of the enforceable claim”, concluded the federal judge.
Process: 0021655-33.2018.4.01.0000 / MG
Trial date: 10/22/2019 | Publish Date: 11/05/2019
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Posted in: 28/01/2020