Acórdão nº 0386/14 de Supremo Tribunal Administrativo, 18 de Junho de 2014
Magistrado Responsável: | FONSECA CARVALHO |
Data da Resolução: | 18 de Junho de 2014 |
Emissor: | Supremo Tribunal Administrativo |
Acordam os juízes da Secção do Contencioso Tributário do Supremo Tribunal Administrativo RELATÓRIO: Não se conformando com a sentença do TAF de Sintra que rejeitou liminarmente o recurso interposto por A……………… Ldª da decisão da coima que lhe foi aplicada com base intempestividade da sua interposição veio a arguida dela interpor recurso para o STA concluindo assim as suas alegações: 1.ª A recorrente recorreu judicialmente da decisão da aplicação de coima proferida no âmbito do procedimento administrativo tributário n.º1 503201006147399 tendo visto o mesmo, à luz da sentença de que ora se recorre, ser liminarmente rejeitado por, alegadamente, ter sido apresentado fora de prazo.
2.ª Sucede que no contexto daquele procedimento a recorrente havia constituído mandatário tributário.
3.ª A notificação da decisão de aplicação da coima que deu origem ao processo em causa é assim ineficaz por não ter sido efectuada junto do mandatário, nos termos do previsto pelo n.º3 do artigo 40 do CPPT aplicável “ex vi” do n.º 2 do RGIT não produzindo efeitos nomeadamente como termo inicial tendo em vista o cômputo do prazo de impugnação da referida decisão.
4.ª E dado que o prazo nunca começou a correr jamais se poderá entender ter o mesmo decorrido previamente à apresentação do recurso indeferido, motivo pelo qual o mesmo deverá ser considerado tempestivo.
5.ª Face à letra do n.º3 do artigo 288 da CRP “os actos administrativos estão sujeitos a notificação aos interessados na forma prevista na lei”.
6.ª Nesse sentido dever-se-á considerar como lei aplicável ao caso o n.º 3 do artigo 70 do RGIT o qual como já referido remete para o CPPT cujo n.º 2 do artigo 36 afirma que a notificação deve conter nomeadamente “os meios de defesa e prazo para reagir contra o acto”.
7.ª Está assim a Administração Tributária a notificar os contribuintes nos termos descritos cabendo-lhes o reflexo direito de a exigir. Direito este que sendo violado pode no limite dar origem à obrigação de indemnizar o sujeito em causa.
8.ª Na notificação endereçada à recorrente podia ser lido: 1.(…)- 2. Mais fica notificado para no prazo de 15 dias a contar da data da notificação, efectuar o pagamento voluntário da coima fixada.
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Fica notificado de que decorrido esse prazo sem que tenha efectuado o pagamento voluntário poderá nos 20 dias posteriores efectuar o pagamento das coimas e das custas referidas sem redução ou recorrer judicialmente.
9.ª Da transcrição acima realizada decorre que o prazo de...
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