When analyzing a case of tax evasion, the Superior Court of Justice (STJ) ended up dismissing the criminal liability of the individual who was the controller and administrator of the company accused of committing the crimes.
This is because the Public Prosecutor’s Office (MP) had used the Dominion Theory to attribute criminal liability to the company’s administrator and partner, but without proving any concrete actions that would link her to the tax evasion itself. In the specific case analyzed, the administrator had hired an accounting firm to handle financial matters, which is why she received, or at least should have received, all the information related to the accounting planning. This fact was considered sufficient for the MP to attempt to attribute criminal liability.
However, the Superior Court of Justice (STJ) ruled that it was not possible to charge the administrator with the crime of tax evasion based solely and exclusively on the Theory of Dominance of Fact, especially since there was no circumstance that indicated a causal link. The decision also stated that the mere position of manager, director, or managing partner of a company does not imply a presumption of participation in the crime. To be applicable, the Theory of Dominance of Fact must be based on some circumstance in the factual-evidentiary context that links the individual to the criminal act.
This is a precedent that could help in legal discussions against the tax authorities and their entire arsenal of tools for intimidating taxpayers, especially in corporations where there are several professionals, including executives and those who handle accounting and tax matters on a day-to-day basis.
