Apelação Criminal Nº 0008033-89.2010.4.03.6181/sp

Penal e processo penal. Artigo 1º, inciso i, da lei nº 8.137/90. Absolvição sumária. Quebra do sigilo bancário. Admissibilidade. Inteligência dos artigos 144, §1º, do código tributário nacional, 8º da lei nº 8.021/90 e 6º da lei complementar nº 105/01. Resp nº 1.134.665-sp, tido como representativo de controvérsia ( artigo 543-c do cpc). Recurso a que se dá provimento. 1. Denúncia que narra o cometimento do crime descrito no artigo 1º, inciso I, da Lei nº 8.137/90. 2. Absolvição sumária (arts.395, III e 397 do CPP) sob o fundamento de que prova que alicerçou a acusação era ilícita porquanto obtida pela autoridade fazendária mediante quebra de sigilo bancário sem autorização judicial. 3. Constatada incompatibilidade entre a movimentação financeira do contribuinte e as informações constantes de sua Declaração de Imposto de Renda, a autoridade fiscal deve instaurar o procedimento fiscal, de modo a apurar a existência de eventual crédito tributário. 4. Consoante o disposto no artigo 144, §1º, do Código Tributário Nacional, aplica-se ao lançamento a legislação que, posteriormente à ocorrência do fato gerador da obrigação, tenha novos critérios de apuração ou processos de fiscalização, ampliado os poderes de investigação das autoridades administrativas, ou outorgado ao crédito maiores garantias ou privilégios, exceto, neste último caso, para o efeito de atribuir responsabilidade tributária a terceiros. 5. A Lei nº. 8.021/90 e a Lei Complementar nº.105/2001 legitimam a atuação fiscalizatória e investigativa da Administração Tributária. 6. O sigilo bancário não é absoluto, mormente porque a proteção aos direitos individuais deve ceder diante do interesse público, observados os procedimentos fixados em lei. 7. Prova que não se afigura ilícita. Cláusula de reserva de jurisdição contida no artigo 5º, inciso XII, da Constituição Federal que se limita ao sigilo das comunicações telefônicas. 8. O Superior Tribunal de Justiça, nos autos do Recurso Especial nº.1.134.665-SP tido como representativo de controvérsia, nos termos do artigo 543-C do Código de Processo Civil, assentou entendimento no sentido de que a Lei nº 8.021/90 e a Lei Complementar nº.105/01 autorizam a atuação fiscalizatória e investigativa da Administração Tributária, sem a intervenção do Poder Judiciário, para fins de constituição de créditos tributários não extintos, inclusive, aqueles referentes a fatos imponíveis anteriores à vigência da referida lei complementar. 9. Recurso a que se dá provimento, determinado o envio dos autos ao Juízo de origem para prosseguimento.

Rel. Des. José Lunardelli

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