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Date: January 13, 2020
Posted by: CPDMA Team

STJ decision allows judicial recovery to suspend auction to pay debt with the Union

A decision by the Superior Court of Justice (STJ) may allow the suspension of tax foreclosures against companies undergoing judicial reorganization. This is because the Special Court decided, in a case involving Oi, that it is up to the 2nd Section of the court to judge conflict between the judgment of execution and that of recovery.

The res judicata is restricted to the continuation of tax enforcement when the judicial reorganization court has not yet ruled on the incompatibility of a constrictive measure of the Union, such as an auction of assets, with the reorganization plan (CC 153998).

The matter came to the Special Court because the STJ ministers differed on the possibility of judicial reorganization suspending the auction of assets for the payment of debts with the Union. The 2nd Section of the STJ, which judges issues related to private law, understands that the recovery must be preserved. The 1st Section, of public law, privileges the payment of taxes.

On the one hand, lawyers in the area of judicial recovery claim that the blocking of assets makes other payments and the very operation of the company in crisis unfeasible. On the other hand, the Attorney General's Office of the National Treasury (PGFN) argues that it has R$ 33 billion in receivables from taxpayers undergoing judicial reorganization, which may become intangible with a contrary decision by the ministers.

The author of the vote that prevailed in the Special Court, Justice Nancy Andrighi, stated that in conflicts involving more than one action, in which each one deals with legal relationships subject to different competences within the scope of the STJ - public or private law - the solution assumes more complex contours and “there is no express rule”. According to the minister, there is a need for the 2nd Section to process and judge the conflict that has arisen because it is competent to decide on issues involving bankruptcies and judicial reorganizations.

The decision reinforces the position of the STJ of 2012. On that occasion, the Special Court decided that it is up to the 2nd Section to judge conflicts related to judicial recovery and tax enforcement.

But the matter can still be judged once more. There is another conflict of jurisdiction involving States and the matter (CC 144.433/GO).

Source: Beatriz Olivon via Valor Econômico.

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