A aplicação do incidente de desconsideração da personalidade jurídica nas ações de execução fiscal

Abstract

This article intends to analyze the application of the incident of disregard of legal personality, established in Article 133 of the Code of Civil Procedure (BRAZIL, 2015), in actions for tax enforcement, when the Public Treasury contests for redirection of the deed in relation to those responsible for payment of the tax credit, pursuant to article 135, item III, of the National Tax Code (BRAZIL, 1966) For the analysis of the question, we used the bibliographical and dialectical critic methodology and neoconstitutionalism as a theoretical framework. Accordingly, it was analyzed whether the non-application of the aforementioned institute in cases of redirection provided for in article 135, item III, of the CTN (BRAZIL, 1966) would violate due process of law, with its principles of adversary and ample defense, since the partner would not have the opportunity to defend himself before his estate was executed. It was concluded that the incident of disregard of legal personality should be applied in tax enforcement actions, when the Public Treasury requires the inclusion of the managing partner in the liability side of the action, since there is no express provision in the LEF (BRAZIL, 1980) on the subject, and thus, the CPC (BRAZIL, 2015) must be applied in its entirety, and failure to initiate the incident would violate due process of law.