The consummation of the crime will only occur after the administrative process, since it serves to verify the existence or otherwise of the generating event, including, if applicable, for the calculation of the amount due, and application of civil penalties, administrative and criminal proceedings.
The definitive release of the tax takes place after due administrative legal process, in which the guiding principles of the tax must be respected, since only the procedural guarantees can limit the power of the state over the taxpayer.
One of the main bases of modern constitutionalism is respect for form, which is a limiting factor of state power over the citizen, in this case the taxpayer. It is the guarantee of due process in all its circumstances. As Minister Gilmar Mendes:
The incorporation of a device exclusively intended to positivize this fundamental guarantee may be associated with the constituent will to break with the political order of the previous period (1964-1985)
Thus, the Brazilian Constitution guarantees due process of law for the deprivation of property and other rights. The administrative process must respect the principle of contradictory and ample defense, since the administrative process is to verify the existence of the generating fact, respecting the positive law in the Charter of the Federative Republic of Brazil, art 5, LV:
Art. 5 Everyone is equal before the law, without distinction of any kind, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, as follows:
LV – to the litigants, in judicial or administrative process, and to the defendants in general are assured the contradictory and ample defense, with means and resources inherent to it
In the constitutional text, it is clear that it is necessary to observe the principle of adversary proceedings, not only in judicial proceedings, but also in administrative proceedings, under penalty of nullity. Thus has been the understanding of the country, as in this Habeas Corpus of the defunct Court of Alçada of the State of São Paulo (TACRIM-SP HC 491798-4, 7th Chamber, rel. Francisco Menin, 14.04.2005, vu):
It is verified that the accused’s notification made in the procedure is null and void, since it was impossible to exercise the right to ample defense, so that there is no way to consider the administrative sphere exhausted, and consequently, the offense will not be characterized for lack of character, since non-existent ‘tribute’ object of suppression or reduction, as provided in the caput of the aforementioned legal provision.
The tax credit, at which time the State may collect the tax, will be formalized only after the final tax has been released, not beginning with the taxable event. In this sense has been the understanding of the jurisprudence homeland:
TAX – PRESCRIPTION – REPUBLIC REPETITION – INITIAL TERM – INCOME TAX REMAINED IN SOURCE. The withholding of the tax on the paying source is unmistakable with the extinction of the tax credit. The tax credit does not arise with the taxable event. It is constituted with the launch (article 142 of the CTN). In the case of Income Tax, the posting must occur after the information of the taxable person, in the declaration of adjustment (Law nº 8.383 / 91, article 15) or by the information of the source that promoted the retention. Either hypothesis leads to the examination of articles 147 and 150, paragraph 4. If there is no express homologation, it will occur tacitly, after five (5) years of the generating event, and only then there is extinction of the credit. (STJ – REsp: 250306 DF 2000 / 0021404-3, Rapporteur: Minister GARCIA VIEIRA, Judgment Date: 06/06/2000, T1 – FIRST CLASS, Publication Date: DJ 01.08.2000 p. 208).
It seems to us even logical to understand the doctrine and jurisprudence, because if there is no main tax obligation, there is no need to talk about criminal or tax unlawfulness. In this sense, Hugo Brito Machado:
Due to the tax obligation, the State can not yet demand the payment of the tax. Also, in the face of the so-called accessory obligations, the state can not demand the behavior to which the individual is obliged. It can, yes, both before a main tax obligation and before a main obligation (CTN art 113 § 3), make the launch, constituting credit in their favor. Only then can you demand the object of the obligatory payment, that is, the payment.
Matter already pacified in the Superior Courts, including with the edition of Summary 24 of the Supreme Federal Court:
I. Material crime against the tax order (L. 8137/90, article 1): launch of the tribute pending final decision of the administrative proceeding: lack of just cause for criminal action, suspended, however, the course of prescription while obstructed its proposition for the lack of definitive release. 1. Although not subject to denunciation to the representation of the fiscal authority (ADInMC 1571), there is a just cause for the criminal action for the practice of the crime typified in art. (1) of Regulation No 8137/90 – which is material or resultant – as long as there is no final decision on the administrative launching procedure, whether the definitive launch is considered to be an objective condition of punishment or a standard-setting element. 2. On the other hand, once the punishment of the crime has been extinguished due to the satisfaction of the tax due, prior to the receipt of the complaint (L. 9249/95, article 34), eminent principles and guarantees do not allow, of the criminal action, if the citizenry is denied the means provided by the law itself, in order to challenge before the Treasury the correctness of the provisional release, to which it must be subjected in order to escape the stigma and hardships of all kinds of criminal proceedings. (HC 81611, Rapporteur Minister Sepúlveda Pertence, Full Court, trial on 10.12.2003, DJ of 13.5.2005)
Thus, as a normative element of the criminal type, this is only when the existence of a tribute due, or, in other words, the existence of a legally-required tax obligation is established. In the Brazilian legal system, the definition of this normative element of the type does not depend on criminal judgment, because, according to the Tax Code, it is the exclusive competence of the administrative authority to define it. Now – and here seems to me the core of the argument of the eminent Rapporteur – I have no doubt that the existence of a legally-required tax obligation is only characterized when, as His Excellency says, the so-called administrative preclusion is given, or terms of the Tax Code, when a definitive stamp on the (…) And this means and demonstrates, to me seems to be unanswerable, that the launching has a predominantly constitutive nature of the demandable obligation: without the launch, there is no tax liability required. (…) Resuming the reasoning, the criminal type will only be fully integrated and perfect at the date in which, in the legal world, a due tax or tax obligation arises. Before this, the criminal type is not set up, and, not being, of course, no criminal action can be instituted on account of him, in the absence of just cause. “(HC 81611, Vote of Minister Cezar Peluso, Full Court, judgment on 10.12.2003, DJ of 13.5.2005)
The binding precedent 24 makes clear the need for the definitive launch of the tribute for the existence of just cause in criminal action. Therefore, in the absence of a definitive release, the denunciation should be rejected by the court of law, in compliance with Article 395, III, of the Code of Criminal Procedure, for lack of just cause.
Article 395. The complaint or complaint will be rejected when:
I – is manifestly inept;
II – lack of procedural presupposition or condition for the exercise of criminal action; or III – lacking just cause for the prosecution.
This is because the criminal process has several requirements for the beginning of the action. At the time of the piece called a complaint or complaint, it must compose in its structure the exposure of the criminal act with all its circumstances.
However, in complex crimes such as those provided for in articles 1 and 2 of Law No. 8,137 / 90, it would be impossible to demonstrate all the circumstances without the analysis carried out in an administrative proceeding. For, the administrative process serves to verify the existence or not of the generating event, and is therefore fundamental for the verification of the circumstances in which the facts occurred.