THE CONCEPTUAL ASYMMETRY BETWEEN ADMINISTRATIVE AND CRIMINAL SANCTIONS IN THE FEDERAL TAXATION

Abstract

The purpose of this article is to analyze the objective conditions for the enforcement of administrative and criminal tax sanctions, due to the practice of the Federal Revenue Service of always issuing qualified fines and tax representations for criminal purposes jointly. It is intended, with this, to demonstrate that there is a conceptual asymmetry between the tax evasion and fraud hypotheses in tax law (more restricted) and in criminal law (broader), from a dogmatic analysis of the legislation, as well as its origin, through legislative dossiers. With that, it will be demonstrated that the discussion of the enforcement of qualified fines, in CARF, has been restricted to the subjective element (intention), forgetting the analysis of the objective elements of imputation, applying the harshest sanction to cases that would not be appropriate.