Recurso Em Sentido Estrito Nº 0003793-72.2001.4.03.6181/sp

Penal e processo penal. Recurso em sentido estrito. Crime contra a ordem tributária. Denúncia que imputa a prática do crime descrito no artigo 1º, inciso i, da lei nº 8.137/90. Desclassificação pelo juízo. Artigo 2º, inciso i, da lei 8.137/90. Extinção da punibilidade. Recurso parcialmente provido. 1. A recorrida foi denunciada como incursa nas penas do artigo 1º, inciso I, da Lei nº 8.137/90, porque, de acordo com a denúncia, em 30 de maio de 1995, na data da entrega de declaração de ajuste anual de Imposto de Renda Pessoa Física (IRPF) referente ao exercício de 1994, a denunciada omitiu a renda equivalente a US$ 161.200,00 (cento e sessenta e um mil e duzentos dólares americanos), recebidos a título de honorários pela atuação como inventariante no processo de inventário. 2. Sentença que, revendo a tipificação penal apontada na denúncia para o disposto no artigo 2º, inciso I, da Lei nº. 8.137/90, declarou extinta a punibilidade da acusada pela ocorrência da prescrição. 3. A conduta típica descrita no artigo 1º, inciso I, da Lei nº 8.137/90 consiste na omissão de informação ou prestação de informação falsa às autoridades fazendárias, com o intento de suprimir ou reduzir tributo ou contribuição social, enquanto a conduta típica descrita no artigo 2º, inciso I, da citada lei consiste em fazer declaração falsa ou omitir declaração sobre rendas, bens ou fatos, ou empregar fraude, para eximir-se, total ou parcialmente, de pagamento de tributo. 4. O delito do artigo 1º, inciso I, da Lei nº. 8.137/90 é material, exigindo para sua consumação a redução ou a supressão do tributo, vale dizer, o dano ao erário. O crime definido no artigo 2º, inciso I, da referida lei é formal, bastando a prática da conduta fraudulenta no sentido de o contribuinte eximir-se do pagamento da exação. 5. Os elementos probatórios indicam, à saciedade, que a conduta da denunciada ensejou efetivo prejuízo aos cofres públicos, razão pela qual se afigura equivocada a desclassificação operada pelo Juízo de 1ºgrau. 6 Na estreita via recurso em sentido estrito descabe falar em condenação da ré, uma vez que pleito nesse sentido só poderia ter sido formulado em sede de recurso de apelação. 7. Recurso a que se dá parcial provimento tão somente para, nos limites do recurso em sentido estrito, afastar o decreto de extinção da punibilidade.

Rel. Des. José Lunardelli

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