O redirecionamento da execução fiscal pela presunção de dissolução irregular: análise da súmula 435 do STJ à luz da legalidade tributária e do ativismo judicial

Abstract

This paper analyzes the legal limits and possibilities of redirecting tax enforcement proceedings against partners and administrators, specifically in cases of irregular dissolution of a company, as consolidated in Precedent 435 of the Superior Court of Justice (STJ). The research begins with a reconstruction of the precedents that originated the precedent, seeking to understand its foundations and implications. The study examines the compatibility of this jurisprudence with the principle of tax legality, a pillar of the legal system, and discusses the problem of judicial activism in tax matters, insofar as the precedent establishes a presumption of dissolution not foreseen in the National Tax Code (CTN). To illustrate the practical application of the thesis, the interlocutory appeal no. 0043833-14.2008.4.05.0000, judged by the TRF5 (Regional Federal Court of the 5th Region), was analyzed. This case rejected the redirection of liability, recognizing that, in the absence of factual elements indicating irregular closure of activities, it is not possible to presume irregular dissolution or hold the partner liable based on article 135, III, of the CTN (National Tax Code). The methodology adopted was qualitative, based on doctrine, legislation, and jurisprudence. It is concluded that redirection should be applied restrictively and with justification, in order to avoid violations of legality and excesses of judicial activism.