A emancipação dos fatos no processo judicial tributário: uma necessária releitura dos mecanismos de distribuição do ônus da prova

Abstract

The present study is focused primarily on the analysis of the distribution of burden of proof between the Tax Treasuries and the taxpayers in the tax judicial process. To this end, the impacts and innovations resulting from the new rules introduced by the Civil Procedure Code of 2015 – “CPC/2015” on the subject will be analyzed. The study will also consider the Brazilian tax litigation system as a whole – from the assessment of the tax credit, through its definitive formalization in the administrative process, until its discussion in the judicial sphere, which also includes the fiscal enforcement procedure –, so as to reach a deeper insight into the distribution of the burden of proof in the judicial process and to make it possible to identify the origin of the concepts and institutes relevant to the matter. Although a broad field of analysis is required, the present study will remain perennially aimed at identifying a more balanced distribution of the burden of proof in the tax judicial procedure than that suggested by the self-centered application of Article 204 of the Brazilian Tax Code – “CTN”.