The majority of the justices of the Federal Supreme Court (STF) dismissed Direct Action for Unconstitutionality (ADI) 4980, following the opinion of the reporting justice, Nunes Marques. The score was eight votes for dismissal of the action against one vote for partial dismissal, cast by Justice Alexandre de Moraes. Justice Dias Toffoli was absent and Justice Roberto Barroso recused himself.
In the lawsuit, the Federal Attorney General questioned the constitutionality of article 83 of Law 9,430/96, as amended by Law 12,350/10, specifically in the part in which the provision establishes the need to wait for a final decision in the administrative sphere before sending a tax representation for criminal purposes to the Public Prosecutor's Office (MP), with respect to the crimes of social security embezzlement.
The reporting judge found that the order to wait for the end of the administrative proceeding before the tax auditor sends the representation with criminal purposes to the Public Prosecutor's Office fulfills the principle of reasonableness, since the measure avoids unnecessarily activating a criminal prosecution, considering that the tax credit can be extinguished either by payment, by adherence to the installment plan, or by the taxpayer's victory in the administrative pathway.
For him, the rule of article 83 of Law 9,430/96 does not offer any risk to the assets of the social security system, and much less mitigates the actions of the Public Prosecutor's Office, because the statute of limitations does not run while the claim is being litigated in the administrative sphere and its enforceability is suspended.
In addition, the reporting judge pointed out that the STF, in ADI 1751, had already defined that article 83 of Law 9,430/96 is directed to the tax authorities and does not interfere with the actions of the Public Prosecutor's Office.
Justices André Mendonça, Edson Fachin, Rosa Weber, Cármen Lúcia, Ricardo Lewandowski, Gilmar Mendes, and Luiz Fux followed the reporting judge.
The divergence was opened by Justice Alexandre de Moraes, who voted for partial dismissal of the case, believing that social security embezzlement is a formal crime and that, therefore, for a prima facie case would not be necessary for there to be a final tax assessment by the administrative authorities.
Moraes made several comments on the risks of tax evasion in Brazil and about the weaknesses of Brazilian legislation in this regard. For him, it should be interpreted in accordance with the Federal Constitution, without reducing the text, to define that there is no need to exhaust the administrative instances in relation to formal crimes.
Thus, ADI 4980 was dismissed, leaving unchanged the rule that prevents the Federal Revenue Service of Brazil from sending tax representations for criminal purposes to the MPF with respect to crimes of social security embezzlement before the end of the administrative litigation.
