Misappropriation of social security funds. The 3rd Panel of the Federal Regional Court of the 1st Region (TRF1) denied the appeal of the Federal Public Prosecution Service against the judgment that acquitted two managers of a transport company of the practice of the offenses set out in Article 168-A, § 1, of the Penal Code. That is, misappropriation of social security funds.
The indictment states that the accused failed in their duty to remit, to the National Social Security Institute (INSS), the social contributions owed. Previously deducted from the employees’ wages, relating to the 13th salary of 2001 and the period from April to September 2002. For which reason a Debt Assessment Notice was issued.
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Faced with the acquittal at first instance, the Federal Public Prosecution Service appealed to the Court, arguing that the company cannot be held responsible for the conduct of a manager who chooses to keep his company operating at the expense of amounts that should have been remitted to the public coffers.
In analyzing the case, the rapporteur, Federal Appellate Judge Mônica Sifuentes, emphasized that the materiality of the offense was proven by the tax notices contained in the case records, which confirm that the accused, in their capacity as those responsible for the social security contributions, failed to carry out the remittance to the INSS coffers.
The magistrate emphasized that the defendant’s defense attached abundant documentation. This proves a multitude of protested instruments, in addition to several lawsuits filed against the company, capable of demonstrating the financial difficulties the company they managed was going through.
According to the rapporteur of the case, the Court’s case law holds that the allegation of financial difficulties as a supra-legal cause excluding culpability, by reason of a state of necessity or of the inexigibility of different conduct, will be exceptionally admitted when it comes “supported by conclusive evidence that allows revealing the absolutely adverse situation experienced by the company at the moment in which it failed to remit to the INSS the amounts due”.
Given the existence of evidence of the company’s financial difficulties, the Panel, following the rapporteur’s vote, recognized the exclusion of culpability due to the inexigibility of different conduct in the case, denying the appeal of the Federal Public Prosecution Service and upholding the acquittal of the defendants.
Source: TRF1
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