Do sistema punitivo fiscal brasileiro: uma análise crítica acerca do bem jurídico tutelado e da incoerente utilização do Direito Penal Tributário

Abstract

This work has the overall goal of analyze the particularities of tax offenses’ criminalization, pointing to the wrong use of Criminal Law as an alternative instrument of coercion to the payment of taxes. When the state's maddening eagerness to pay the expenses of public machinery guides the fiscal punitive system, the threat of imprisonment, through Criminal Law, ends up becoming an easier way to arrive at the tax payment, revealing a clear distortion of the legal good protected by these criminal types, and, above all, the very emptying of Criminal Law itself as “ultima ratio legis”. Reflecting the conflict between criminal policies and the interest in tax collection, the fiscal punitive system appears in one hand, with relatively high penalties, and, on the other, with the incidence of decriminalizing institutes that, in the end, make it difficult to apply the penalty, characterized by an inconsistency that leads to its own inefficiency. The conclusion will revolve around the need to recognize a distortion of the legal good protected by crimes against the tax order, in order to understand that this legal good is far beyond mere patrimonial interests and, therefore, should not be confused with the tax credit, it cannot even be subject to trivialization promoted by institutes that obstruct penal application. This reasoning, at the end, will also point to the premise that the most effective fight against the problem of tax evasion in Brazil passes through, but is not limited to, the use of Criminal Law, leading the discussion to another scenario, involving cultural aspects and, especially, the rationalization of the tax system. Therefore, elaborated mainly from a rational discourse of Criminal Law, from the perspective of improving dogmatics, this dissertation used essentially bibliographic research, based on the survey of relevant theoretical references in the area.