Controversial Aspects of Crimes Against the Tax Order

Law no. 8.137, of December 27, 1990

Abstract

The aim of this paper is the study of some controversial aspects of crimes against the tax system, since, not infrequently, legal practitioners – especially the tax authorities responsible for the tax supervision and revenue – have erroneously applied Law no. 8,137/1990, which has caused serious damage to taxpayers. That is because the subjective mental element of crimes of this kind is the fraud, consisting in the free and conscious will to practice suppression or reduction of taxes. On the premise that the subjective mental element is fraud, it is assumed that the criminal responsibility of the defendant is subjective, and its proof is essential, through effective evidence. Nonetheless, it is observed that tax authorities, eager to collect, end up assuming the intentions of the taxpayers, applying them an ex-officio fine in face of a tax infraction, which gives rise to a tax representation for criminal purposes and, consequently, to a criminal action. In addition, said authorities also end up applying objective criminal liability in the crimes in question, since they also condemn the co-managing partners of the companies prosecuted, based only on the document regulating the legal entity, without any proof of intent.