O ÔNUS DA PROVA NO PROCESSO ADMINISTRATIVO FISCAL

Abstract

ABSTRACT: The Brazilian Civil Procedure Code of 2015, expressly applicable to administrative litigations, determines that the burden of proof is up to the part that alleges the law.  On the other hand, the Brazilian administrative procedure code, of 1972, that originally only regulated notices of infraction, determined that the burden of proof for the infraction was up to the administration and the tax payer only had to defend himself of the accusation.  Occurs that the act number 10.833, in 2003, created a new situation for the administrative procedure code.  From then on, if the taxpayer alleges credit right against the tax administration, and declares the compensation of this credit to pay off another tax debit, the debit would be considered extinct until express manifestation of the administration in the opposite direction.  Therefore, emerged the discussion of the burden of proof, regarding to the alleged credit right for the tax compensation.  Applying the new Civil Procedure Code to the administrative litigation, the original rule, that determined that  the burden of proof was up to the administration, was put away.  Now, the taxpayer that alleges the credit right has the burden of proof of the liquidity and certainty of the credit.

KEYWORDS (descriptors): Administrative litigation.  Civil Procedure Code.  Burden of proof.  Tax compensation