Da possibilidade de aplicação do instituto da “prescrição intercorrente” no âmbito dos processos administrativos fiscais tributários

Abstract

The administrative intercurrent prescription presented in this study is based on the application, by analogy, of the LEF Article 40 when a tax administrative process remains, by inertia of the tax authorities, for more than five years without any relevant movement, awaiting a decision of the administrative appeal filed by the taxpayer. Even though tax authorities’ repeated omissive acts are detrimental to constitutional principles, there is no specific legal prediction until now that aims to curb such acts. In addition, once the administrative process is proceeding, the requirement of credit under review shall be suspended in accordance with Article 151, III of the CTN. However, in the attempt to correct this legislative absence, a contemporary part of the jurisprudence applies of the intercurrent prescription in the context of administrative tax proceedings, in view of the saluting need to break the inertia of the administration, as a way of guaranteeing the constitutional principle of reasonable duration of process. From such considerations, we will see that, based on Article 40 of the LEF and, invoking Article 108 of CTN, fully applicable the application, in the context of tax administrative proceedings without decision or relevant movement for more than five years, by analogy, the institute of intercorrent prescription