Acr – 9164/rn – 2009.84.00.001838-1

Penal e Processual Penal. Apelações do Ministério Público Federal e da defesa. Ação penal deflagrada com o intuito de perseguir a prática do crime contra a ordem tributária (artigo 1º, inciso I, da Lei 8.137/90), narrando a denúncia que o acusado, de forma consciente e voluntária, omitiu informações à Receita Federal, com relação a sua declaração de imposto de renda, referente ao ano-base de 1998, exercício de 1999, tendo a fiscalização fazendária constatado considerável diferença no cotejo entre a renda declarada, no valor de quarenta e três mil, novecentos e cinquenta e sete reais e noventa e nove centavos, e a movimentação em suas contas bancárias, no montante de dois milhões, quatrocentos e cinquenta e quatro mil, quatrocentos e vinte e dois reais e cinquenta centavos. Por conta disso, o acusado foi condenado às penas, privativa de liberdade de dois anos e três meses de reclusão, substituída por duas restritivas de direito, e multa, no quantum de trinta e nove dias-multa, à razão de um quinto do salário-mínimo vigente à época do fato. Toda apuração da suposta prática delituosa foi derivada de prova, obtida por meios ilícitos - no caso, a Receita Federal teve acesso ao sigilo bancário do apelante sem a devida autorização judicial, como se esclarece a seguir. Em consonância com a jurisprudência capitaneada pelo Supremo Tribunal Federal, quando do julgamento do RE 389.808, é vedado à Receita Federal proceder à quebra do sigilo fiscal de investigado à míngua de autorização judicial, sob pena de ofensa à inviolabilidade de dados consagrada na Carta Magna, em seu art. 5º, inciso XII. Precedentes do Superior Tribunal de Justiça (HC 138385, min. Maria Thereza de Assis Moura, publicada em 15 de fevereiro de 2013), e desta Corte Regional (ACR 8301, da minha relatoria, julgada em 13 de agosto de 2013; ACR 8326, des. Francisco Wildo, julgado em 10 de janeiro de 2013; ACR 7297, des. André Luis Maia Tobias Granja (convocado), publicada em 27 de novembro de 2012; ACR 8807, des. Ivan Lira de Carvalho (convocado), publicada em 19 de abril de 2012). Anulação da ação penal, sem prejuízo de que a investigação possa ser reaberta em outra sede, desde que satisfeitas as condições mínimas de procedibilidade. Apelação do acusado provida, apelação do Ministério Público Federal improvida.

Relator: Desembargador Federal Vladimir Souza Carvalho

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