Tax declared unconstitutional after the tax execution has been filed
PIS contribution. Declaration of unconstitutionality of Decree-Laws no. 2.445/88 e 2.449/88. Issue of Resolution 49/95. Effects “erga omnes” and ‘ex tunc’ effects. Need for a new launch within the decadence period.
Keywords:
tax×inconstitutionality×tax enforcement×resolution of the Federal Senate×effect “erga omnes” and “ex tunc”×new entry×decay period×PIS×, tax, inconstitutionality, tax enforcement, resolution of the Federal Senate, effect , new entry, decay period, PISAbstract
The issue at hand is to analyze the effects that the declaration of formal unconstitutionality of a tax, with “erga omnes” effects, attributed by a resolution issued by the Federal Senate, will have on a previously filed tax execution, with the legal basis erected for the collection of the taxes that are the subject of this execution being exactly the rule that was declared unconstitutional due to a procedural defect. Detailing the problem even further, what would be the effects of this declaration of formal unconstitutionality on this collection, by means of a tax execution, which is already underway, in relation to the tax credit, which until then had been perfectly enforceable, since it had been duly constituted?
References
BARROSO, Luís Roberto. O controle de constitucionalidade no direito brasileiro. 5. ed. São Paulo: Saraiva, 2011.
CARVALHO, Paulo de Barros. Curso de direito tributário. 26. ed. São Paulo: Saraiva, 2015.
COSTA, Regina Helena. Curso de direito tributário - Constituição e Código Tributário Nacional. 5. ed. São Paulo: Saraiva, 2015.
PAULSEN, Leandro. Curso de direito tributário. 6. ed. Porto Alegre: Livraria do Advogado, 2014.
PAULSEN, Leandro e outros. Direito processual tributário – processo administrativo fiscal e execução fiscal à luz da doutrina e da jurisprudência. 5. ed. Porto Alegre: Livraria do Advogado, 2009.
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