O incidente de desconsideração da personalidade jurídica e o devido processo legal de terceiros na execução fiscal: uma proposta de projeto de lei

Abstract

This research aims to address the issue of what is the right procedure to be followed to pierce the veil of legal entities, specifically in the context of Brazil’s tax law, whether the procedure envisaged by the Brazilian Civil Procedure Code must be previously applied in such a situation or not. Initially, through deductive reasoning, it establishes premises regarding the legal personality, which entails the distinction between the assets owned by a legal person and those owned by its shareholders and, in general, the limitation of their liability, the disregard of legal entity theory, mainly in the tax law, the procedure established to pierce the veil of legal entities by the current Brazilian Civil Procedure Code, and the relevant specifics of the Brazilian law that fixes the judicial procedure for collecting taxes in Brazil. With such premises established, this research analyzes the main judgments in which the referred problem is addressed, which will demonstrate that the most important Brazilian court (Superior Court of Justice) responsible for analyzing such causes holds, in some circumstances, that the Brazilian Civil Procedural Code and that procedure don’t apply to pierce the veil of a legal entity in the tax law. On the other hand, the São Paulo Court of Justice holds a different position, more favorable to the individual instead of the State. In the end, the research concludes that such a procedure must be previously followed in the judicial procedure for collecting taxes in Brazil, or else the due process of law would be breached, thus breaching the article 5º, LIV and LV, of the Brazilian Constitution. Finally, considering this research is inserted in a Master’s program that requires not only a theoretical analysis, but a practical approach to subject as well, it also provides a legislative proposal that regulates how that procedure should be applied when collecting taxes, what is necessary for not limiting this research to theoretical analysis, so it can also contribute practically to the community in which the issue is present, considering the non-favorable position hold by the Superior Court of Justice to the application of that procedure in some circumstances related to tax collection in Brazil.