A (in) constitucionalidade do voto de qualidade do CARF no processo administrativo fiscal e o princípio do in dubio pro reo

Abstract

The objective of this research is to analyze whether the casting vote granted to the Administrative Council of Tax Appeals – CARF is constitutional or not, as well as the application of the principle of in dubio pro reo in tax law. To this end, the main conceptual and historical aspects of the quality vote will be discussed, the difficulties faced by taxpayers with the tiebreaker in favor of the Union and its constitutionality. In addition, possible alternatives will be identified to resolve impasses in administrative demands between the Union and taxpayers, in order to guarantee contradiction. The objective is to understand how the principle of in dubio pro reo in tax law can avoid disparities and unconstitutionalities in the casting vote in administrative tax demands. The hypothesis raised is that, as in Criminal Law, the principle of in dubio pro reo requires that the State, represented by the Public Prosecutor's Office, prove beyond any reasonable doubt the guilt of the accused in order to convict him. Therefore, the vote of the administrative court must be linked to the acquittal, that is, to the relief of the taxpayer, otherwise, there would be discretion and the vote would be in accordance with personal conviction, favoring the Union in an arbitrary attempt at excessive collection. The research will be carried out through bibliographic analysis of national doctrines using the deductive method and descriptive research.