A prescrição intercorrente na execução fiscal: uma análise crítica do Resp. n° 1.340.553/RS de 2018 em face do princípio da supremacia do interesse público

Abstract

This paper’s goal is to investigate the relationship between Resp. 1,340,553 of 2018 with the undue application of the institute of intercurrent prescription, which puts an end to executive actions that, in theory, have little or no probability of success, as well as to prevent them from long lasting in the judiciary. In this sense, the High Court of Justice, under the supervision of Ministry Mauro Campbell, stated through Recurso Especial N. 1.340.553/2018, that the period of one year of suspension of the execution process would automatically begin with Ministry of Treasury regarding the non-location of the debtor or the non-existence of seizable assets. It so happens that, in the procedural sphere of Tax Execution, the high number of processes has made it impossible to monitor and properly analyze them, which impairs the recovery of public credits. This enormous procedural burden prevents demands from being monitored and analyzed in an effective and satisfactory way. Thus, in general, an analysis of the relationship between Resp. 1.340.553/2018 with the undue application of the institute of intercurrent prescription, being restrained to the following specific objectives: to clarify the main consequences of the application of Resp. N. 1.340.553-RS of 2018 in the tax execution process; discuss the constitutional aspects of the principle of supremacy of the public interest added to the fiscal, extrafiscal and parafiscal function of taxes and identify the extent to which the drowning of the judiciary in fiscal demands causes damage to the public budget. For this purpose, the methodological path of bibliographical and documentary research will be used through the hypothetical-deductive method of approach, using tax foreclosures extinguished by the institute of intercurrent prescription from the period 2018 to 2022, as well as administrative reports and documents of defense prosecution that are available at the National Treasury Attorney's Office in Maranhão. Thus, the central hypothesis is that by applying the five-year period to extinguish claims that, in theory, have little probability of success, it violates the constitutional principle of the supremacy of the public interest and the social function of taxes, since the The State itself would suffer with the burden of collecting a debt from those who simply do not have assets or hide them. That is, for the debtor, the act of remaining dormant is beneficial, while ineffective attempts to recover public credit are considered harmful acts to the Ministry of Treasury, causing extinction by the simple passage of time.