A decadÃncia do direito de lanÃar em vista da ocorrÃncia de vÃcios formais na constituiÃÃo de crÃditos tributÃrios : uma abordagem relativa à igualdade na relaÃÃo jurÃdica tributÃria

AUTOR(ES)
DATA DE PUBLICAÇÃO

2004

RESUMO

ItÂs possible to assert that a limitation of action is not a right annihilation mechanism but a threshold, between the entitlement to a right and the right to the stability of preexisting situations. Our goal, on analyzing art. 173, inc. II of the statute n 5.172/1966, a.k.a. CÃdigo TributÃrio Nacional (CTN), is to reveal, on the referred statute, the omission that could allow the principle of equality to be scratched. Therefore, we support the application of the non-fiscal statute to the case of the limitation of the fiscal assessment action. The right to procede a new fiscal assessment, as a result of a previous administrative annulment due to an imperfect procedure performed by the government agents, must find its limits on the equality principle, applicable to fiscal affairs. We propose the application of the non-fiscal statute, art. 54 of statute n 9.784/1999, a.k.a Lei Federal do Processo Administrativo (LFPA). The basis to this proposition begins with the principle of the impossibility of voidance on the legal system. As a result of the acquiescence to this principle, it is mandatory that the apparent omission must be eliminated. One of the means to achieve this outcome might be the use of analogical assimilation. Furthermore, the proposed non-fiscal statute section application will affect the limitation period by indirect ways, as it will influence the period of time that the government will be allowed to reassess the fiscal obligation. The first PART of this dissertation deals with the applicability of principles - constitutional and fiscal - in tax regulation. We point, subsequently , equality principle as regulator of relationship between Public Administration and tax-payer. In PART II, we start to approach the decadence theme , the tax revisions possibilities and the injury of equality principles. We finish suggesting the application of art. 54, LFPA, by analogical assimilation, to supply the omissive inc. II, art. 173, of CTN

ASSUNTO(S)

decadÃncia, igualdade, lanÃamento, nulidade decadence, equality, assessment, annihilation direito

ACESSO AO ARTIGO

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