Apelacao Criminal 2008.50.01.002211-4

Penal. Art. 2º, inciso ii, da lei nº 8.137/91. Não Recolhimento de imposto de renda descontado Dos assalariados. Suspensão do processo. Parcelamento do tributo. Autoria. Pena-base. Circunstâncias judiciais desfavoráveis. 1. A despeito de o art. 68 da Lei nº 11.941/2009 prever a suspensão da pretensão punitiva nos crimes contra a ordem tributária e de apropriação indébita e de sonegação de contribuição previdenciária enquanto houver o parcelamento do débito tributário, o acusado não faz jus a tal benefício, tendo em vista que inexiste qualquer documento que comprove que o débito tributário objeto da presente ação penal esteja incluído no programa de parcelamento. 2. Os ofícios da Receita Federal e da Procuradoria-Geral da Fazenda Nacional informaram que não foi concedida tal benesse ao contribuinte e o crédito fiscal imputado ao acusado permanece objeto de execução, havendo, inclusive, determinação de expedição de mandado de penhora, o que permite concluir pela inexistência de suspensão administrativa, ou seja, de parcelamento do débito tributário. 3. A condenação do réu não se baseou, simplesmente, no contrato social da empresa, mas de todo o acervo probatório, não se tratando, portanto, de responsabilidade penal objetiva. 4. A Certidão de Consulta ao CNPJ da empresa indica que, por ocasião dos fatos delituosos (anos de 2004 e 2005), o acusado era o sócio-gerente da empresa SOCIEDADE EDUCACIONAL NOSSA SENHORA DO CARMO LTDA., e possuía poderes de administração. 5. O próprio réu, em seu interrogatório, confirmou que nos anos de 2004 e 2005 estava na administração da empresa, mas que, após sofrer um Acidente Vascular Cerebral (AVC) em meados de 1995, se afastou da gerência e contratou um administrador, de nome Elísio Oliveira Lopes, a quem teria dado amplos poderes para tomar todas as decisões financeiras relativas à referida sociedade. No entanto, este último, ao prestar depoimento, esclareceu que o réu ficou afastado por 104 (cento e quatro) dias, tendo reassumido o controle da empresa após este período, o que foi corroborado pelas outras testemunhas que declararam que o réu sempre assinou todos os documentos da empresa, antes, durante e depois da administração deste, demonstrando que, a despeito de o réu ter sido acometido de um AVC em 1995, sempre esteve presente na gerência da sociedade. 6. Deveras, na qualidade de representante legal da empresa SOCIEDADE EDUCACIONAL NOSSA SENHORA DO CARMO, o apelante tem, ou deve ter, ciência do que acontece dentro de sua empresa, bem como de suas obrigações com a fiscalização tributária. 7. O aumento da pena-base do réu não ofendeu o princípio da proporcionalidade, tendo em vista que algumas das circunstâncias judiciais realmente lhes são desfavoráveis. 8. Apelação desprovida

Rel. Des. Liliane Roriz

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