Acórdão nº 01341/15 de Supremo Tribunal Administrativo, 02 de Dezembro de 2015
Magistrado Responsável: | FONSECA CARVALHO |
Data da Resolução: | 02 de Dezembro de 2015 |
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 Beja que julgou improcedente a impugnação judicial deduzida por A………….. S.A. contra a liquidação de juros compensatórios relativa a atraso de liquidação de IVA referente ao período de tributação de Dezembro de 2007 no montante de 3 397,25 veio a impugnante dela recorrer para a Secção do Contencioso Tributário do Supremo Tribunal Administrativo formulando as seguintes conclusões: A Trata-se de uma decisão que assenta num lamentável equívoco que tal como a liquidação impugnada lesam injusta e injustificadamente os interesses do contribuinte, enfermando de ilegalidade por violação de lei e dos direitos subjectivos emergentes para os contribuintes da Constituição Fiscal, consubstanciando um comportamento indiciador de má fé por parte da Administração Fiscal. Senão vejamos: B Refere a sentença em apreço que “Ora contrariamente ao propugnado pela impugnante verifica-se, sem margem para dúvidas, o requisito do retardamento da liquidação do imposto devido”.
C No caso concreto não houve lugar ao retardamento de liquidação do imposto devido pela simples razão e que como aqui se demonstra não houve em qualquer momento imposto devido aos cofres do Estado.
D Como é óbvio, não existindo nunca – nem no momento da apresentação da declaração de auto liquidação do IVA como no momento da apresentação da respectiva declaração de substituição qualquer imposto devido, não haverá naturalmente lugar à obrigação de juros! E A própria definição vulgarmente aceite de juro apresenta-o como “a remuneração ou compensação devida pelo tempo em que o credor fica sem a utilização de montante temporariamente colocado à disposição do devedor”.
F E não havendo imposto devido, mas apenas uma redução do crédito que o sujeito passivo tem sobre o Estado (que passa a ser menor) – não se verifica aquilo que é exigido pelo artigo 35 da LGT para que sejam devidos juros compensatórios ou seja não existe retardamento de liquidação de parte ou da totalidade do imposto devido.
G Daí que no caso, o Estado (credor na obrigação tributária) não ficou sem a utilização de montante temporariamente colocado à disposição do devedor.
H Tanto no momento da apresentação da declaração substituída como no momento da apresentação da declaração de substituição o credor foi sempre apenas o impugnante.
I O que significa que à luz da própria definição de juro acima transcrita não há lugar a qualquer remuneração ou compensação uma vez que o Estado não ficou em qualquer momento sem a utilização de montante temporariamente colocado à disposição do devedor.
J A impugnante é um sujeito passivo que em sede de IVA se encontra frequentemente em situação de crédito de imposto pois realiza diversas operações que beneficiam de isenção completa de IVA.
K Em 08 de Fevereiro de 2008 a impugnante submeteu dentro do prazo, via Internet, a declaração periódica nº 102667942335 relativa ao período 2007/12 (cfr declaração modelo...
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