A possibilidade de discussão dos débitos parcelados e sua revisão judicial

A possibilidade de discussão dos débitos parcelados e sua revisão judicial

Fabio Aluisio Souza Antonio*

É pacifico o entendimento do Superior Tribunal e Justiça que a confissão de dívida, feita com o objetivo de obter parcelamentos dos débitos tributários, não impede o contribuinte de questionar posteriormente a obrigação tributária, a qual pode vir a ser anulada em razão de informações equivocadas que o contribuinte tenha prestado ao fisco.
Os órgãos da administração tributária têm o dever de revisar de ofício o lançamento quando se comprove erro quanto a qualquer elemento definido na legislação tributária como sendo de declaração obrigatória. É a chamada revisão por erro de fato. Você contribuinte tem o direito de retificar e ver retificado pelo Fisco as informações fornecidas com erro de fato, quando essa retificação resultar a redução do tributo devido.
Nesse passo, quando a administração, em vez de corrigir o erro cometido nas informações prestadas, optar pela lavratura do auto de infração, este estará eivado de nulidade, que por força de existência, coagi o contribuinte a pedir o parcelamento, o que somente poderia ser feito mediante confissão. Assim, se não houvesse auto de infração a confissão inexistiria, concluindo-se que o vício contido no auto de infração foi transportado para a confissão dos débitos, que ensejou o pedido de parcelamento.
Ou seja, havendo o auto de infração, feita a confissão de dívida e realizado o parcelamento do débito tributário, sendo o auto de infração aplicado ilegalmente, não há impedimentos que impeça o contribuinte questionar na Justiça a obrigação tributária, parcelamento, assumida podendo mesmo vir a ser anulado em razão de informações equivocadas que o contribuinte tenha prestado ao Fisco.
Conclui-se por fim que a confissão de dívida para fins de parcelamento de débitos tributários não impede posterior discussão judicial quanto aos aspectos jurídicos, podendo o contribuinte que se sentir lesado em seu direito, buscar o judiciário para que o débito seja revisto pela autoridade competente.

*Fabio Aluisio Souza Antonio é advogado – Souza Antonio Advocacia. E-mail: fasa@adv.oabsp.org.br

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Sem programação oficial, aniversário de Ribeirão Bonito passa despercebido

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