Crime against the Public Treasury

Selling " cheap diesel " to those who could not afford it can be a crime , even if the seller claims that there were only "paperwork errors." The case involves a company authorized as a fiscal warehouse (meaning, an entity that can handle certain fuels under a special tax regime) whose sole administrator supplied subsidized diesel to two road transport companies that, according to the proven facts, were not authorized to be recipients of that product. To make it possible, documentation was used to simulate that the deliveries were made to authorized recipients. The economic result of this operation was a damage to the Public Treasury , because a reduced rate of the Special Hydrocarbons Tax was improperly applied when, based on the actual use, the general rate should have been applied. In addition, the defrauded amount exceeded the required legal threshold for the conduct to go from being an administrative offense to a crime.

The defenses denied that there was intent to defraud , and argued that, at most, it was about formal breaches. They also claimed , among other things, nullity of the procedure, very qualified undue delays, violation of fundamental rights, and lack of evidence to convict. The Public Prosecutor , on the other hand, requested conviction for a crime against the Public Treasury and argued that the criminal offense was correctly applied and that there was sufficient evidence .

The Supreme Court (TS) dismissed the appeals and confirmed the conviction . Essentially, for the TS, it was not just a formal failure, since the obligation to sell subsidized diesel only to authorized persons is a “substantive” rule to prevent fraud. If it is knowingly supplied to someone who cannot receive it, the correct tax is being avoided , fitting into the offense of art. 305. 1 of the Criminal Code. The TS adds that the intent can be inferred from a concerted and repeated action , and that it does not matter if the seller claims that they “passed on the tax” or did not keep all the profit because what is decisive is the economic harm to the Treasury caused by incorrectly applying the reduced rate.

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