Nas sociedades anônimas, a figura do acionista controlador desempenha papel central na definição dos rumos estratégicos da companhia. Detentor do poder de eleger a maioria dos administradores e de influenciar as deliberações sociais, esse acionista possui uma posição de destaque que, embora legítima, deve ser exercida dentro dos limites legais e em consonância com os […]
CPDMA BLOG
Category: News
Date: November 13, 2019
Posted by: CPDMA Team
Debtor cannot be excluded from the regularization program because of formalities
It violates the principles of reasonableness and proportionality to exclude from the Rural Tax Regularization Program a producer who, although he has applied for membership and fulfilled the payment of all installments, fails to comply with a mere formal procedure.
On this basis, the 1st Federal Court of Santo Ângelo (RS) confirmed a preliminary injunction, in a writ of mandamus, to reinclude a ruralist in the PRR, with the consequent suspension of the enforceability of debts. With the decision, delivered on November 6, the federal tax authorities must issue a Positive Certificate with Negative Effects for the plaintiff.
According to federal judge Marcelo Furtado Pereira Morales, who aligned himself with the reasons of the judge who anticipated the right in an injunction on August 5, the danger of delay "lies in the impossibility of the petitioner, without joining the PRR, to obtain the certificate of fiscal regularity, an essential document for the financing of rural production". Appeals can be made to the Federal Regional Court of the 4th Region.
The lawyers Claudia Gardin Martins and César Augusto da Silva Peres, from Cesar Peres Advocacia Empresarial (CPAE), acted in the defense of the rural producer.
Writ of Mandamus
The Federal Revenue Service delegate in Santa Maria (RS) denied issuing CPEN, despite the fact that the author made the payment of the entry and the first installments that followed it, as determined by article 7, paragraph 2, of Law 13.606/2018, who instituted the PRR. Reasons alleged by the tax authorities: payment of an amount lower than the amount due to enter the Program; and inexistence of a digital process in the name of the petitioner to confirm his adhesion. Against this denying act, the plaintiff's defense filed a Writ of Mandamus, with a request for an injunction.
At first, the injunction was denied. However, as the plaintiff deposited in court the difference in the value of the installments indicated by the National Treasury, the substitute federal judge Carla Cristiane Tomm Oliveira decided to comply with the Writ of Mandamus, granting the injunction for the purpose of suspending the enforceability of the tax credit.
According to the judge, the deposit of the amount estimated by the tax authorities is capable of producing the effect of suspending the enforceability of the tax credit, even in the case of depositing installments in force. In the point, he cited precedent of the 1st Panel of the TRF-4, drawn up by the summoned judge Alexandre Rossato da Silva Ávila: "The principles of reasonableness and proportionality justify the taxpayer's maintenance in the installment of Law 12.996/14, once the judicial deposit has been made difference of prepayments determined in the consolidation of the debt".
Source: Jomar Martins via Conjur.
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