Criminal defense in the scope of tax crimes – especially when the debts that gave rise to the criminal process were taxed in installments – is quite complex, especially because of the succession of laws that govern the matter.
Since the promulgation of the CoR / 88, the issue has been successively updated by almost a dozen rules which have repealed or supplemented the previous ones  . This demonstrates on the one hand the constant change in the legislator’s understanding of the subject, on the other hand, the need for a thorough updating of the professionals who work in the defense of clients in tax crimes.
The purpose of this text is to make a comparison between the last two existing rules – and that still have repercussions when practicing tax crimes (article 9, Law 10684/03 and article 6, of Law 12382/11, which changed the set forth in article 83, of Law 9.340 / 96), as well as to demonstrate the peculiarities of each law in relation to the suspension / extinction of punishability and the prescriptive period.
By the previous rule was “suspended the punitive claim of the State, referring to the crimes provided in arts. 1 and 2 of Law No. 8,137 of December 27, 1990, (…), during the period in which the legal person related to the agent of the said crimes is included in the installment regime. (…) “as well as” extinguishing the punishability of the crimes referred to in this article when the legal person related to the agent makes full payment of debts arising from taxes and social contributions, including accessories “(article 9 of Law 10.684 / 03).
That is, under the aforementioned rule, there is no temporal limitation for the installment of the debt to suspend punishment and the limitation and full payment of the debt extinguish the punishability .
Thus, punishment would be suspended / extinguished , regardless of the procedural moment – investigation, crime, appeals, etc., as long as before the final decision.
However, under the current rule, “The State’s punitive claim regarding the crimes provided for in the caput [tax offenses] is suspended, during the period in which the natural person or legal entity related to the agent of the said crimes is included in the installment, since that the request for payment in installments has been formalized before the receipt of the criminal complaint “, as well as” extinguishing the punishability of the crimes referred to in the caput when the individual or legal entity related to the agent makes full payment of the debts arising from taxes , including accessories, which have been subject to installment payment “(Article 6 of Law 12382/11) .
Thus, although the rules are similar – and as for the extinction of punishment by the full payment, they are effectively – the impact was substantial when the debt was parceled out, especially when analyzing the period in which the latter is admitted to suspend punishment and the statutory period.
By the new rule – currently in force – the installment is only admitted for the purpose of suspending the punishment and the statute of limitations when done before the receipt of the complaint .
The rule seems very clear – and indeed it is – but it must be remembered that the procedural process is not immediate (on the contrary, in most cases, they are extremely time consuming).
In this context, nothing more common and natural than the process for tax crimes practiced during the validity of the previous law to process under the new law (click here for example of a concrete case).
In this case, what is the applicable law regarding the suspension of punishability in case of installment of debt?
An analysis of the rules put into play reveals the criminal character of art. 9 of Law 10,684 / 03 – as it is about the criminal liability and thus on the right to punish the state – endorsed this position including precedents of the Supreme Court (eg HC and HC 81 929 85 452).
More than that, a comparison between this rule and how disciplined by art. 6, of Law 12.382 / 11, shows that the new law is more burdensome than the previous law.
This finding implies that, in the case of art. 9 of Law 10.684 / 03 of the most beneficial criminal law, its effectiveness extends to all the facts practiced during its validity, even though it was repealed by the new, more burdensome rule (article 5, XL, CR / 88).
Both this is true that, in relation to previous successions of law, when the entry into force of art. 9 of Law 10.684 / 03, the e. STF has been called on several occasions to express its temporal application, taking into account that the previous rule – art. 15, caput and paragraph 1, of Law 9,964 / 00 – provided that the tax debt installment generates suspension of punishment and limitation if effected prior to the receipt of the complaint , in a manner similar to the current regulation.
Therefore, in the case of the succession of laws in time, it was understood that the criterion to be applied would be that of art. 5, XL of the CR / 88 and that since it is a more beneficial criminal law, art. 9, of Law 10.684 / 03 would be retroactive to the benefit of the defendant :
PENAL ACTION. Tax crime. Tribute. Payment after receiving the complaint. Extinguishment of punishability. (…) Retroactive application of art. 9 of Federal Law 10,684 / 03, cc. Art. 5º, XL, of the CF and art. 61 of the CPP . The payment of the tax, at any time, even after receiving the complaint, extinguishes the punishment of the tax offense. “- gn – ( STF – HC 81.929 , Min. Sepúlveda Pertence, Rel. , DJ 27.2.2004)
The ruling vote of the preceding precedent is based on the solid doctrine of Heloísa ESTELLITA (2003, p. 3), for whom “as is the case with regard to the installment, the new discipline of the legal-penal effects of payment, since it is more beneficial, all citizens who are in this situation, regardless of the procedural stage. “
By the way, the leading case is not isolated, with c. Supreme Court upheld the criminal character of art. 9, of Law 10,864 / 03:
(…) PARCELMENT AND DISCHARGE AFTER RECEIPT OF THE COMPLAINT. EXTINCTION OF PUNIBILITY, BY STRENGTH OF RETROATING BENEFICIAL LAW. (…) It does not matter if the installment was granted before or after the validity of the laws that prohibit it: if it occurred in any way, it should refer to the aforementioned Article 9 [of Law 10.864 / 03]. (…) The new law allows it to do so later, and therefore, lex mitior, whose retroaction must operate according to Article 5, XL of the Brazilian Constitution. “- gn – ( STF – HC 85.452 , Rel. Min. Eros Grau, DJ 3.6.2005)
Evidenced the criminal character of art. 9 of Law 10.684 / 03, it is evident that any subsequent rule repealing it would have to be analyzed in terms of advantages or disadvantages to the accused, so that any conclusion could be drawn regarding its temporal application. This is the understanding of e. TJPR (click HERE to see the judge).
In the context, since the new rule is beneficial to the accused, it applies retroactively; being the new rule prejudicial to the accused, can not retroact to reach facts prior to its validity.
Therefore, if the new rule [art. 6, of Law 12382/11] partially repealed more beneficial criminal law, it seems evident – by virtue of the application of art. 5, XL, CR / 88 – that the previous rule [art. 9, of Law 10.684 / 03] remains applicable in relation to the events occurred during its term. In other words, the rule of art. 9, of Law 10.684 / 03 is ultra-intensive in relation to art. 6, of Law 12382/11 .
 vg art. 14, of Law 8.137 / 00, art. 98, of Law 8,383 / 91, art. 34, of Law 9249/95, art. 15, of Law 9.964 / 90, art. 9, of Law 10.684 / 03 and more recently, art. 6, of Law 12382/11, which amended the provisions of art. 83 of Law 9,340 / 96
ESTELLITA, Heloísa. Payment and Installment in Tax Crimes : the new discipline of Law n. 10,684 / 03. In : Bulletin IBCCRIM, SP, set. 2003, p. 3.