Habeas Corpus Nº 0017323-76.2012.4.03.0000/sp

Habeas corpus. Crime contra a ordem tributária. Inépcia da denúncia. Trancamento da ação penal. Quebra de sigilo bancário. Autorização judicial. Nulidade. Ordem denegada. 1. Da análise da peça acusatória depreende-se que contém a exposição clara e objetiva dos fatos alegadamente delituosos, o que possibilita ao paciente o exercício pleno do direito à ampla defesa. 2. Afastada a alegação de inépcia. Denúncia que preenche os requisitos do artigo 41 do Código de Processo Penal. 3. O trancamento da ação penal, por ausência de justa causa, somente é possível quando se verifica de pronto a atipicidade da conduta, a extinção da punibilidade ou a inexistência de indícios de autoria ou materialidade, circunstâncias que não foram evidenciadas no presente caso. 4. Embora o fato tenha ocorrido no ano-base de 1998, a quebra do sigilo fiscal do paciente ocorreu depois da LC n.º 105/01 que autoriza o monitoramento mensal da atividade financeira do contribuinte e o cruzamento de tais informações com aquelas prestadas à Receita Federal. 5. O artigo 144, parágrafo 1°, do CTN dispõe que as normas tributárias procedimentais ou formais têm aplicação imediata, ao contrário daquelas de natureza material, que somente alcançariam fatos geradores ocorridos durante a sua vigência. 6. Os dispositivos da LC n° 105/01, que autorizam o cruzamento de informações, são normas procedimentais, incidem de imediato, alcançando fato gerador ocorrido antes de sua entrada em vigor. Precedentes. 7. Ordem denegada.

Rel. Des. Vesna Kolmar

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