Co-defendant would have taxed "in a non - cumulative manner the sale of fuel or hydrated alcohol, which belongs, according to the ministerial understanding, to the cumulative credited in the calculation of the PIS/Cofins", among other irregularities that totaled a tax credit of R$4.9 million. To the 9th Federal Court of Campinas (SP), the businessman claimed that the tax administrative procedure that served as the basis for the accusation contained a series of nullities, which would authorize the carrying out of accounting expertise and justify the suspension of the criminal action. The request, however, was denied. Dissatisfied, the defense filed a Habeas Corpus request with the TRF-3.
To support the request for suspension, he claimed that, as the release of the tax credit is being discussed in court in embargoes on tax enforcement, including pending technical expertise, there is a probability that it will be withdrawn, generating atypical conduct in the criminal sphere. . He also argued that the issue discussed in the embargoes on tax enforcement, depending on the result of the expert opinion, will determine whether the businessman would be entitled to PIS/Cofins credits, which will have inevitable effe Special Phone Number Data cts in the criminal sphere. He also added that the expert opinion determined by the tax enforcement court raises reasonable doubt about the materiality of the crime. Finally, the defense maintained that the tax credit subject to the criminal action is entirely guaranteed by the seizure of a property valued at R$16 million, which was accepted by the court and the Public Treasury — that is, at the end of the action, the credit will be extinct.
Responsible for analyzing the remedy filed, judge Ali Mazloum recognized that, once full guarantees on the amounts owed have been offered and accepted, there is no longer any reason to maintain the criminal proceedings, since the solution adopted in the execution records could extinguish the punishability of the crime by full payment of the debt , "or even provide the acquittal of the defendant/patient due to lack of materiality ascertained in the ongoing examination" . Furthermore, according to the judge, decisions of the Superior Court of Justice "point to the possibility of suspending the criminal action" when there is full guarantee of the debt accepted by the civil court — and regardless of the solution applied in this sphere.