Recurso Em Sentido Estrito Nº 0011988-02.2008.4.03.6181/sp

Penal. Processo penal. Recurso em sentido estrito. Crimes contra a ordem tributária. Imposto sobre a renda retido na fonte (lei n. 8.137/90, art. 2º, ii). Natureza. Consumação. Procedimento administrativo. Prescrição. Pena in abstracto. 1. É inaplicável a prescrição em perspectiva ou virtual, ou seja, aquela em que é considerada a pena provavelmente a ser aplicada, pois que violaria as disposições do Código Penal que regulam os prazos prescricionais em função da pena abstrata cominada ao delito. (TRF da 3ª Região, 5ª Turma, ACr n. 2006.61.14.001944-6, Rel. Des. Fed. Ramza Tartuce, unânime, j. 08.02.10, DJF3 CJ1 05.03.10, p. 806). 2. É possível a análise da prescrição com base na pena in abstracto, com fundamento nos arts. 109 e 110, ambos do Código Penal. 3. O não-recolhimento de Imposto sobre a Renda Retido na fonte constitui crime omissivo próprio, de natureza instantânea, cuja consumação ocorre com a mera conduta de não repassar o valor descontado de terceiros aos cofres públicos, no prazo legal. 4. Recurso em sentido estrito desprovido.

Rel. Des. André Nekatschalow

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Jurisprudência 3ª Região

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