On the crime against the tax order provided for in art. 2, II, of Federal Law 8,137, of December 27, 1990

Abstract

The article analyzes the criminal type of art. 2, II, of Law 8.137/90, which criminalizes the conduct of failing to collect, within the legal deadline, the amount of tax withheld or collected as a taxpayer subject to the obligation. The methodology is dogmatic, with examination of the elements of the type (legal object, subjects, core, intent, consummation), in light of tax legislation (CTN, State Law 6.374/89, ICMS Agreement 66/88) and criminal procedure law, as well as the case law of the superior courts. The article distinguishes the crime of art. 2 (declared and unpaid debt) from art. 1 (omission or falsification of the declaration), and addresses the criminal action, statute of limitations, prejudicial questions, extinction of punishability (revoked by art. 98 of Law 8.383/91) and the waiver of police inquiry when the GIA and COA already inform authorship and materiality. It concludes that payment after the administrative procedure does not exclude the offense, serving only as reparation for sentencing purposes.