Restituição do indébito tributário: legitimidade ativa nas incidências indiretas

• Autor(a) principal: Darzé, Andréa Medrado
• Data de Publicação: 2014
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/6446
• topic: Restituição do indébito tributário; Repercussão jurídica; Legitimados tributos indiretos; Refund of undue tax payment; Legal repercussions; Indirect taxes legitimate parties; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The purpose of this study is essentially analyze the article 166 of the National Tax Code. We began our research by identifying what is the real basis of validity of the right to refund the undue tax payment. In this stage of research, all effort was directed to synthesize the contours that were established by the Federal Constitution in the delineating of this prerogative. Then, we intend to answer the following questions: When is effectively possible to talk about undue tax payment? What is it legal nature? What are the requirements, factual and legal, for its configuration? What is the view of the courts case law, in particular the Supreme Court and Superior Court of Justice concerning article 166 of the National Tax Code? After intense reflection, we concluded that the right to refund the undue tax payment has direct basis on the Constitution, although is not adequate to conclude, indistinctly, the unconstitutionality of article 166 of the National Tax Code. This is because shifting the legitimacy of the general law rule of the right to a refund in cases of tax repercussion or even to require proof of the absence of repercussion in situations in which there is a legal presumption of its existence does not necessarily implies limitation or restriction on the right to refund. On the contrary, properly applied, is essential measure to avoid spreading new pathologies in the legal system, this time arising from the refund of the undue tax payment itself, which certainly would occur before the grant of uniform treatment for cases in which taxation involves legal repercussion of their onus and those in which this phenomenon does not occur. But to so conclude, it is necessary to interpret this statement without the remnants of financial law and without interference from other sciences. In a second stage we fixed the content and scope of the main signs and compositional phrases of article 166 of the National Tax Code. All with the goal of identifying an interpretation of this legal statement in accordance to the Constitution and general rules themselves on the matter. Held the analytical decomposition of the right to a refund of the undue tax payment set by article 166 of the National Tax Code, we define denotatively that taxes which, by its nature, have repercussions and, as such, have its refund requests submitted to this special rule