-Dissolução societária irregular- a aplicação do princípio da actio nata no redirecionamento da execução fiscal aos

Abstract

The purpose for which was created the society of the limited kind allowed acting in a way that the responsibility of the administrators to the obligations of the society only occurs when the subjective element is present in the exercise of the management of the society. This protection persists even in case of default of the tribute on part of the hypothetical society in which, in case of the inheritance does not exist or being insufficient, the administrator will only be called to the passive pole of the tax execution if he violates the chapeau of Article 135 of the National Tributary Code c/c the Article 1036 of the Civil Code. The case law, majority, has resisted in accepting request for redirection to the administrator of the corporation in the case of irregular dissolution in the course of the tax lien has the expiration of five years from the date citation legal entity. As a result a parcel of scholars and enforcers of tax law have invoked the principle of the actio non nata non praescribitur as grounds of the request. The aim of this study was to analyze the existing possibility in the Brazilian legal system for application of this principle in the tax enforcement. For this, the relevant prescription to institute standards, doctrinal positions, and case with their respective pleas were analyzed. From this analysis it was concluded that the irregular dissolution of the company in the course of tax lien constitutes violation of law and common practice that has the effect of extinguishing the patrimony of the company without consent of the competent authorities, obstructing the redirection of the enforcement action when it occurs more than five years citation legal entity. In the persecution of the claim is required to exhaust all possibilities to achieve the company's property and that, for procedural issues, may take more than five years. What confirms the subsidiary responsibility of the administrator before the tax authorities. Tax legislation gives opportunity to a harmonious dialogue with the rules of civil law and civil procedure sheltering the positioning of the current that host the redirection the request at the time the creditor become aware of the illegal practice, in awe to the principle of actio non nata non praescribitur that emanates from the better interpretation of Article 189 of the Civil Code: Ex factor oritur jus. Ex factor oritur jus.