Em agosto deste ano a 3º Seção do Superior Tribunal de Justiça (STJ), considerou crime de apropriação indébita o não recolhimento de ICMS declarado por parte dos empresários. A decisão, embora polêmica, está sendo utilizada nos estados de São Paulo, Bahia e Santa Catarina.
No entanto, como era previsto, tal decisão está sendo utilizada em outras esferas. Os promotores iniciaram o oferecimento de denúncias contra empresários para a cobrança de outros impostos, dentre eles o ISS e o IPI, com o intuito de aumentar a arrecadação tributária, uma vez que, para escapar da pena de detenção, os empresários optam em assumir pessoalmente a responsabilidade por efetuar o pagamento dos débitos tributários.
Para configuração de crime de apropriação indébita, se faz necessário o preenchimento dos seguintes requisitos:
A equipe do Departamento Tributário do Theon de Moraes Advocacia Empresarial encontra-se à disposição para prestar quaisquer esclarecimentos adicionais ao tema acima (firstname.lastname@example.org).
Theon de Moraes Advocacia Empresarial
Lawyer, graduated, with emphasis on Business and Corporate Law, by Universidade Presbiteriana Mackenzie, member of the Brazilian Bar Association – São Paulo Section (OAB/SP) nº 330.140. Post Graduated in Mergers and Acquisitions and in Business and Corporate law by Fundação Getúlio Vargas (FGV), holding a Master's Degree (LL.M) in Political and Economic Law by Universidade Presbiteriana Mackenzie, author of several books and articles, member of the São Paulo State Lawyers Association (AASP).
Languages: English, Spanish and Portuguese.
Currículo Lattes (CNPQ): http://lattes.cnpq.br/2609951264442749
Lawyer, graduated by Pontifícia Universidade Católica de Campinas, member of the Brazilian Bar Association – São Paulo Section (OAB/SP) nº 398.216. Post Graduation student in Civil Procedure Law at Pontifícia Universidade Católica de São Paulo (PUC/SP / COGEAE).
Languages: English and Portuguese.
Lawyer, graduated by Centro Universitário de Campo Limpo Paulista/SP, member of the Brazilian Bar Association – São Paulo Section (OAB/SP) nº 412.211. Post Graduation student in Labor and Labor Procedure at Damásio Educacional.
Languages: English and Portuguese.
Lawyer, graduated by Faculdade 7 de Setembro. Postgraduate and specialist in environmental law and new trends, with emphasis on social and environmental risks in mega-projects, by Escola de Direito de São Paulo da Fundação Getúlio Vargas. Postgraduate and specialist in public law, with emphasis in International Environmental Law, by Universidade Federal do Ceará. Master in Law and Development (LL.M), with emphasis on the exploration of pre-salt and Public Finance, by Universidade Federal do Ceará. Attending to a PhD in Political and Economic Law, with emphasis on National Sector Plans and Public Finance, at Universidade Presbiteriana Mackenzie. Monitor of the Infrastructure Post graduation program at FGVLaw. Researcher by merit at Prodoc "A Estratégia brasileira para a gestão sustentável dos recursos vivos e não vivos marinhos" at Universidade Federal do Ceará, Universidade Presbiteriana Mackenzie and Universidade Paris I - Panthéon Sorbonne. Member of the Business and Human Rights research group at Fundação Getúlio Vargas. Also graduated in Dispute Settlement by the WTO Chair and Center on Global Trade and Investment (CGTI-FGV).
Languages: French and Portuguese.
Currículo Lattes (CNPQ): http://lattes.cnpq.br/9210257112532242
Through our preventive guidelines, answers to consultations, issuance of legal opinions, performance in operations and in corporate practices, we increase the legal certainty for our clients in decision-making.
Lawyer, graduated in Law by the University of Ribeirão Preto (UNAERP), member of the Brazilian Bar Association, São Paulo Section (OAB / SP) nº 297.105. Graduated in Business Administration by the University of São Paulo (FEA-USP).
Languages: English, German and Portuguese.
Lawyer, graduated in Law by the Universidade Padre Anchieta, member of the Brazilian Bar Association, São Paulo Section (OAB / SP) nº 354.500. Post Graduation student in Tax Law at Pontifícia Universidade Católica de São Paulo (PUC/SP).
Languages: English and Portuguese.
Lawyer, graduated in law from the University Center of Brasília (UniCeub), member of the Brazilian Bar Association in the São Paulo Section (OAB / SP), under the number 359.179. Post Graduate and specialist in Constitutional Law, Consumer Relations Law; Criminal Law; Electoral Law; Labor Law and Labor Process; and Tax Law. Master in Political and Economic Law, author of books and articles, lecturer, university professor, member of the São Paulo Lawyers Association and the Brazilian Institute of Criminal Sciences (IBCCRIM).
Languages: German, Spanish, French, English and Portuguese.
TM Law is highly qualified in litigation matters of the main areas of the corporate law, in which we approach in a few basic principles, as follows:
Events that threaten the companies, putting them in crisis, are rarely confined to a judicial or administrative litigation proceeding. Such events, that represent a great risk to the business, usually, in addition to a dispute, are exposed in the media, bringing immeasurable damages to the company.
In this regard, TM Law understands that the complexity of crisis events that threaten companies, should be dealt both within and outside of the processes, whether judicially or administratively, and dealt directly with the administrators (Board of Officers, Board of Directors, among others), and internal corporate teams, whether in Brazil or abroad, providing a strategical treatment in all fronts of the business crises.
In this sense, we assist our clients in addressing simultaneously with discrete and intelligent responses, all sides of corporate crises (judicial, administrative or media), minimizing its impacts whether they are related to finances, corporate image or to a dispute.
Dealt and identified as alternative ways to resolve conflicts, clearing the Judiciary, the Arbitration and Mediation are procedural models that are being commonly used in Brazil, providing celerity and efficiency in resolving disputes.
Those who choose to resolve their disputes through arbitration can enjoy several benefits. Among the main benefits, we can highlight the celerity to resolve the conflicts in a definitive way, allowing the sentence to be immediately enforced. Another important factor is that, other than a judge, the arbitrator is usually an expert and have specific expertise on the litigation subject, allowing the case to be better assessed. Moreover, the dispute can be resolved without publicly exposing those involved. Thus, the content will remain between the parties and the arbitrators that compose the court, which are subjected to professional secrecy, enabling confidentiality in all stages of the conflict resolution.
The mediation, other than arbitration, is characterized by being a non-litigious procedure. In this regard, with the help of the mediator, the parties seek to resolve the conflict together in order to reach a satisfactory outcome for both.
TM Law has extensive experience in representing our clients in arbitration and mediation procedures.
Regarding corporate governance and anti-corruption practices, TM Law conducts technical investigations and procedures in the administration and management of business, reaching all its boards (board of officer, board of directors, among others), in order to provide the adoption, implementation or even the review of policies of transparency, accountability, social and environmental development, ensuring to our clients greater credibility and boosting their market confidence, making them more competitive in its segment and more attractive for new investments, thus ensuring the sustainability of the businesses and the longevity of its operations.
Additionally, TM Law has a highly technical team capable to introduce compliance practices, transforming principles of corporate governance in staff actions.
In this regard, the adoption of a compliance program includes: the review of the entire tax return, accounting, operational information of the corporation, risk assessments, profitability and vulnerabilities assessments, to then develop methods and practical and specific solutions, to each type of company.