Post by account_disabled on Mar 7, 2024 4:56:39 GMT
The discount of tax debts in court orders to be paid to creditors including due installments goes against the independence between the Powers res judicata and the right to full defense. The understanding is that of the Special Court of the Federal Regional Court of the th Region which recognized as unconstitutional incidentally Constitutional Amendment which included paragraphs and of article of the Federal Constitution.
The rapporteur of the case federal judge Otávio Roberto Pamplona in his vote states that the two paragraphs violate at the same time four constitutional principles article which guarantees the harmony and independence of powers; article item XXXVI guarantee of res judicata; article item LV which guarantees the right to adversarial proceedings and full defense; and the principle of reasonableness and proportionality.
The judge explains that the credits of court orders are credits BTC Number Data that result from final court decisions remembering that “the res judicata is immutable”. The Treasury's credit on the other hand results from an administrative decision according to which the Treasury establishes its credit and issues the respective extrajudicial executive title administratively. The second case unlike the first states Pamplona “is not definitive and immutable”.
According to the ruling “by ordering the Judiciary to offset credit of an administrative nature with credit of a jurisdictional nature without due legal process [ the measure ] usurps the competence of the Judiciary”. Furthermore in the opinion of the judge whose vote was followed unanimously since the Treasury has in its favor several material and procedural privileges such as a fiscal precautionary measure and a specific enforcement process the creation of the device goes against the principle of proportionality .
The legal process is also offended according to the decision as the reduction of the amount due in court orders does not give the right to embargoes preventing the judicial challenge of the credit opposed by the Treasury which says Pamplona “as is obvious” can be challenged in court .
The decision was given in an Interlocutory Appeal against a construction steel industry in which the Union claimed that the paragraphs in question do not suffer from the defect of unconstitutionality and that it is even “uneconomical” to impose on the public sector the need to develop efforts to collect debtors. The Federal Regional Attorney's Office states that Constitutional Amendment aimed to strengthen the principles of efficiency and economy.
The rapporteur of the case federal judge Otávio Roberto Pamplona in his vote states that the two paragraphs violate at the same time four constitutional principles article which guarantees the harmony and independence of powers; article item XXXVI guarantee of res judicata; article item LV which guarantees the right to adversarial proceedings and full defense; and the principle of reasonableness and proportionality.
The judge explains that the credits of court orders are credits BTC Number Data that result from final court decisions remembering that “the res judicata is immutable”. The Treasury's credit on the other hand results from an administrative decision according to which the Treasury establishes its credit and issues the respective extrajudicial executive title administratively. The second case unlike the first states Pamplona “is not definitive and immutable”.
According to the ruling “by ordering the Judiciary to offset credit of an administrative nature with credit of a jurisdictional nature without due legal process [ the measure ] usurps the competence of the Judiciary”. Furthermore in the opinion of the judge whose vote was followed unanimously since the Treasury has in its favor several material and procedural privileges such as a fiscal precautionary measure and a specific enforcement process the creation of the device goes against the principle of proportionality .
The legal process is also offended according to the decision as the reduction of the amount due in court orders does not give the right to embargoes preventing the judicial challenge of the credit opposed by the Treasury which says Pamplona “as is obvious” can be challenged in court .
The decision was given in an Interlocutory Appeal against a construction steel industry in which the Union claimed that the paragraphs in question do not suffer from the defect of unconstitutionality and that it is even “uneconomical” to impose on the public sector the need to develop efforts to collect debtors. The Federal Regional Attorney's Office states that Constitutional Amendment aimed to strengthen the principles of efficiency and economy.