Apelação Criminal Nº 0001218-52.2006.4.03.6105/sp

Penal. Crime contra ordem tributária (art. 2º, ii, da lei n.º 8.137/90). Imposto de renda retido na fonte. Não recolhimento aos cofres públicos. Inépcia da denúncia, não acolhida. Materialidade e autoria. Demonstrados. Dosimetria da pena. Redução da pena imposta. Recurso parcialmente provido. 1. Preliminar de inépcia rejeitada. Tratando-se de crime de autoria coletiva, não se afigura necessária a individualização do acusado e do outro sócio-gerente com o oferecimento do aditamento. Ademais, há que se ressaltar que o Ministério Público Federal, na espécie, descreveu suficientemente a conduta perpetrada pelo acusado, consoante se observa do excerto da denúncia acima transcrito. 2. Materialidade comprovada pela Representação Fiscal para Fins Penais n.º10830.004038/2005-55 (fls.09/28), a qual atesta o não-repasse do valor de Imposto de Renda Retido na Fonte, bem como os valores descontados de pagamento a pessoa física por serviços prestados, subsumindo-se ao delito previsto do artigo 2º, II, da Lei nº 8.137/90. 3. Autoria estreme de dúvida. Extrai-se da alteração do contrato social, que o acusado Jair Eduardo Destro e seu sócio Luis Fernando Geraldo, exerciam gerência e a administração da sociedade empresária “COPLAM MONTAGENS LTDA.“ e nessa qualidade deixou de recolher, no prazo legal, imposto de renda retido na fonte. 4. Elemento subjetivo. O dolo está sobejamente demonstrado nos autos, na medida em que o acusado Jair Eduardo, juntamente com o sócio Luis Fernando, livre e conscientemente, na qualidade de administradores da empresa “COPLAM MONTAGENS LTDA.“, deixaram de recolher aos cofres públicos valores retidos na fonte a título de imposto de renda. 5. Dosimetria da pena. Pena reduzida para 7 (sete) meses de detenção e a pena de multa para 11 (onze) dias-multa, mantido o valor unitário fixado na sentença. 6. Preliminar rejeitada. Apelação, no mérito, a que se dá parcial provimento.

Rel. Des. Vesna Kolmar

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