Crimes against the tax order | The subjective element of the type
The subjective element of the type in crimes against the tax order
In the present text, the hypothesis will be worked out, on several occasions faced by the criminal lawyer, regarding Denunciations formulated by the Public Ministry in relation to crimes against the tax order (Law 8137/90), without there being any individualization of the conduct of the partner, the absence of proof of intent, especially as regards the typical conduct set forth in art. 1st, subsection II of said legal diploma.
Crimes against the tributal order
Law 8.137 / 90 defines crimes against the tax, economic and anti-consumer relations, and I its art. 1st, it regulates criminal conduct against the tax order, in the following terms:
Art. 1 – It is a crime against the tax order to suppress or reduce tax, or social contribution and any accessory, through the following conducts:
I – omit information, or give a false declaration to the fiscal authorities;
II – fraudulent tax inspection, inserting inaccurate elements, or omitting operation of any nature, in a document or book required by the tax law;
III – falsify or alter invoice, invoice, duplicate, sales note, or any other document related to the taxable transaction;
IV – to elaborate, distribute, supply, issue or use document that knows or should know false or inaccurate;
V – deny or fail to provide, where required, invoice or equivalent document, regarding the sale of goods or rendering of service, effectively carried out, or provide it in disagreement with the legislation.
Penalty – imprisonment of two (2) to five (5) years, and fine.
The hypothesis of item II contemplates the practice of “fraudulent tax inspection, inserting inaccurate elements”, which is concretized by the use of deception, arduous, deceitful or “omitting operation of any nature, in a document or book required by the tax law”, which, in turn, is an improper omissive conduct, where, by omission of information, the agent commits fraud, causing damage to the public purse through the suppression or reduction of tribute.
Crimes against the tax order are classified by the doctrine as material and commissive (admitted to omission in the hypothesis of item I, of article 1), so that the fraud, understood as the free and conscious will to carry out the crime, prior determination of the commission of the offense.
It happens that, in the hypothesis of the conduct described in item II, of art. 1, in which criminal conduct is evidenced by the insertion of inaccurate elements in documents or fiscal books, it remains challenging to prove the fraud, since the practice of business management is to be hired professional accounting and assigned to it the function of inserting information in the fiscal documents of the company, to be subsequently made available to tax inspection bodies.
Thus, it is questioned: how to prove the intentional conduct of the partner denounced for the crime foreseen in item II of art. 1st when the accounting of the company is external?
This questioning is fundamental, since to typify the crime of art. 1, item II, it is indispensable the demonstration of existence of previous determination to evade the tax; otherwise we will be faced with atypical conduct by the absence of the subjective element of the type.
As a rule, in cases in which the member is denounced, it is possible to verify that his conduct was only to organize the financial documents and send to the accountant, in turn responsible for the accounting activity of the company. That is, in truth, in these situations, the person responsible for inserting inaccurate elements motivating the tax inspection and subsequent criminal action is the accountant, who in turn had full confidence of the partners of the company.
It is clear that in cases where the accounting activity is the responsibility of a technical professional not belonging to the staff of the legal entity, as well as demonstrated that the partner denounced is a person who does not have technical training in the accounting area, it is not possible to conclude existence of intent necessary for the criminal classification of subsection II, of art. 1 st.
In addition, it should be pointed out that, because of the postulate of the presumption of innocence (article 5, LVII CF / 88), specifically in its “rule of judgment”, the burden of proof is transferred to the accusation regarding the typical conduct, its authorship and materiality, so that it is the responsibility of the ministerial body to individualize the conduct of the accused partner and to prove the fraud, since it is an essential element to typify the conduct of tax fraud.
Thus, in the absence of evidence of the agent’s fraud, the suppression or reduction of wrongful tax is excluded in view of the subsidiary applicability of the Criminal Code, which prescribes the exceptionality of the wrongful act by stating that ” no one shall be punished for a fact predicted as a crime, except when he practices it fraudulently. “
It should also be pointed out that criminal liability is of the subjective type, and criminal law prohibits so-called objective criminal liability, and therefore, the conviction is inadmissible for the simple fact of being a partner of the company.
Professor Nilo Batista, in the book “Critical Introduction to Brazilian Criminal Law”, teaches that
it does not fit, in Criminal Law, an objective responsibility, derived only from a causal association between the conduct and a result of injury or danger for a legal good. ( BATISTA, 2007).
So being a member of a company is not a crime! In relation to the evidence of fraud in crimes against the tax order within the company, the judgment in the Superior Court of Justice of RHC 19764 / PR, Rel. Min. Gilson Dipp. DJ 25.09.16, where it is inferred that
the mere fact of being a partner, director or administrator of a company does not authorize the initiation of criminal proceedings for crimes committed within the company, if there is no evidence of evidence, even with elements to be investigated in the course of criminal proceedings, cause and effect between the imputations and their function in the company, failing which the objective criminal responsibility is recognized.
Therefore, it remains to be shown that, in the case of crimes against the tax order, it is indispensable, with respect to the principle of presumption of innocence, that the prosecution must be proven by the ministerial body, as well as the existence of fraud, since it is a matter of a subjective element of the type, without which criminal responsibility becomes impossible, since objective accountability is inadmissible in the criminal court.