STF rejeita recurso do Botafogo contra penhora de direitos do clube
A penhora diz respeito direitos federativos e econômicos relativos à transferência do zagueiro Dória.
Os ministros do Supremo Tribunal Federal (STF) confirmaram decisão do presidente da Corte, ministro Luiz Fux, que negou seguimento ao Recurso Extraordinário com Agravo (ARE) 1281848, em que o Botafogo Futebol e Regatas, do Rio de Janeiro (RJ), pretendia rediscutir a penhora de direitos federativos e econômicos de titularidade do clube relativos à transferência de atleta profissional. Na sessão virtual encerrada em 14/12, os ministros negaram provimento ao agravo interno do Botafogo contra a decisão monocrática de Fux.
Execução fiscal
Com a negativa de seguimento confirmada pelo Plenário do STF, fica mantida a decisão do Superior Tribunal de Justiça (STJ) que julgou o recurso do Botafogo incabível. Nele, o clube questionava a exigibilidade do crédito tributário por afronta a dispositivos do Código Tributário Nacional (CTN) e do Código de Processo Civil (CPC). Segundo os advogados, seria indevida a penhora dos direitos federativos e econômicos relativos à transferência do zagueiro Dória (Matheus Dória Macedo), e a situação inviabilizaria a manutenção de suas atividades. O clube também alegava que não poderia ter havido a rescisão do programa de parcelamento denominado Timemania, disposto na Lei 11.345/2006.
O Tribunal Regional Federal da 2ª Região (TRF-2), cuja decisão foi mantida pelo STJ, negou recurso do clube contra a ordem de penhora imposta no âmbito de execução fiscal. Para a corte regional, a rescisão do parcelamento é causa suficiente para a exigibilidade do crédito tributário, e o clube não comprovou sua alegação de que a penhora dos direitos federativos e econômicos inviabilizaria a manutenção das suas atividades.
Decisão
No ARE, o Botafogo alegava violação dos princípios da ampla defesa e do contraditório. Em sua decisão monocrática, o ministro Fux afirmou que a decisão do STJ está amparada em aplicação de precedente firmado com base na sistemática da repercussão geral. O ministro explicou que o artigo 1.042 do Código de Processo Civil (CPC) é expresso sobre o não cabimento de agravo dirigido ao STF nas hipóteses em que a negativa de seguimento do recurso extraordinário tiver se dado exclusivamente com base na sistemática da repercussão geral, sendo essa decisão passível de impugnação somente por agravo interno perante o próprio Tribunal de origem. Além desse obstáculo processual, Fux assinalou que, para ultrapassar o entendimento do STJ, seria necessário interpretar a legislação infraconstitucional pertinente e reexaminar fatos e provas dos autos, o que não é cabível em sede de recurso extraordinário.
Multa e majoração de honorários
No voto em que manteve seu entendimento, o ministro Fux propôs a aplicação de multa de 5% do valor atualizado da causa, pois, em seu entendimento, o agravo interno se revelou “manifestamente infundado”, ao trazer argumentos reiteradamente rejeitados pelas instâncias anteriores. Ele propôs também o aumento dos honorários advocatícios ao máximo legal em desfavor do Botafogo. O ministro Marco Aurélio foi o único a divergir, apenas com relação à majoração da verba honorária.
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