Bacen jud na execução fiscal federal: uma análise dogmática acerca da possibilidade de bloqueio de ativos financeiros antes da tentativa de citação do devedor.

Abstract

The purpose of this study is to examine the possibility of blocking financial assets through BACEN JUD, before attempting to cite the debtor in the context of federal tax enforcement. The research is mainly justified by the innovations of article 854 of the 2015 Code of Civil Procedure, which provides for the online attachment procedure, which has not yet been satisfactorily addressed by doctrine and jurisprudence. In addition, the sources of study from the old CPC are limited and generic, considering the pacification of the STJ understanding at that time, as well as confusing as to the interpretations of the LEF, CPC/1973 and CTN provisions. To achieve this goal, a qualitative research, dogmatic approach was conducted, which mainly analyzed the arts. 238, 239, 240, 300, 301, 305, 312, 829, 830 and 854, all of CPC/2015, and arts. 7th, 8th, 9th, 10th and 11th of Law 6.830/1980, which provide for the acts of online citation, blocking and attachment, as well as art. 5, clauses LIV, LV and LXXVIII, of CF/88, which establishes the principles of due process of law, contradictory and ample defense, besides having the subsumption to the bibliographic and documentary revision, which revealed the tax attorney position and the favorable to debtors, as well as a jurisprudential research on the subject. Through these surveys, it was shown that the National Treasury Attorney understands that art. 854 of CPC/2015 allowed the unavailability of financial assets, prior to attempting to cite the debtor, and that the measure may be determined by the judge, through its General Power of Caution, to preserve the effectiveness and utility of the executive process. From another perspective, jurists understand the need for citation prior to blocking, in compliance with the constitutional principles of due process, contradictory and ample defense in compliance with the provisions of arts. 7, 8 and 10 of the LEF and art. 829 of CPC/2015, as well as the absence of exception imposed by art. 854 of the new Code of Rites. At the end of the analysis, the initial hypothesis was not confirmed, since it corroborates the arguments of impossibility of blocking assets, through BACEN JUD, before attempting to summon the debtor in the context of federal tax enforcement.