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Date: April 23, 2019
Posted by: CPDMA team

Procedure for prescription in tax foreclosures

So much commented among taxpayers who suffer tax enforcement, the statute of limitations gained prominence after the judgment by the Superior Court of Justice (STJ), in September last year, by the systematic of repetitive appeals, which consolidated the understanding regarding the beginning of the period for counting of the so-called intercurrent prescription.

To get to the details of this decision, it is important to make brief conceptual and distinctive comments between the institutes of decadence, prescription and intercurrent prescription. The statute of limitations refers to the period of five years that the Public Treasury has to establish the tax credit through the entry, at which time it must verify the occurrence of the taxable event, determine the taxable matter, calculate the amount due, identify the taxable person and, if applicable, apply any penalty. After this period has elapsed without this right being exercised by the Public Administration, the tax credit will be extinguished. The statute of limitations, in turn, is related to the right of action to collect this credit, which must be exercised within five years from its definitive constitution. The legislation regulates cases in which this period will be suspended or interrupted, as in article 40 of the Tax Enforcement Law - LEF (Law 6,830/1980), which determines the suspension of tax enforcement for a period of one year and, consequently, , from the counting of its statute of limitations, while the debtors of the tax credit or assets on which the attachment may fall are not located.

In 2004, there was an amendment to the LEF that added the fourth paragraph to article 40 and, thus, introduced the so-called intercurrent statute of limitations to the tax legal system. This device started to provide for the statute of limitations verified during the tax execution process, when, by inertia, the Public Treasury fails to promote it for a period of five years. This modification was intended to temporarily limit the executive action and thus prevent the Attorneys' Offices and the Judiciary from eternally insisting on actions with little or no probability of success. Although it seems simple, at first glance, these institutes are easily confused in practice, which has led taxpayers and Public Treasury to discuss, until the last instance, the application of these concepts. As a result of the multiplicity of appeals submitted to the STJ on this issue of law, the Special Appeal 1,340,553/RS was judged by the 1st Section of that Court, establishing a system for counting the intercurrent prescription period, the one that occurred after the filing of action.

At the end of the trial, five different theses were established due to the moment in which they can be decreed. The first determines that the period of suspension of the process (of one year, according to the caput of article 40) and the respective statute of limitations, when the debtor is not located or if there are no seizable assets at the address provided, will start automatically after the date of the acknowledgment of the Public Treasury in this regard, right after the first unsuccessful attempt to locate seizable assets or right after the first unsuccessful attempt to summon the debtor or locate his assets, depending on whether the order that ordered the summons took place before or on the Effectiveness of Complementary Law 118/2005 (which amended the sole paragraph of article 174 of the National Tax Code - CTN, including this order as a hypothesis of interruption of prescription). The second thesis established that, after the one-year period of suspension, the statute of limitations will begin immediately. After this time lapse, the judge, after hearing the Public Treasury, must recognize the intercurrent prescription and decree it immediately. The third thesis, on the other hand, states that the effective asset constriction and the effective summons are capable of interrupting the intercurrent prescription, retroacting to the date of the petition protocol that required these measures. As for the penultimate one, addressed to the Public Treasury, it concerns the need for any claim of nullity due to the lack of subpoena within the procedure of article 40, of the LEF, to be brought to the file at the first opportunity in which it is able to manifest itself, and provided that the damage suffered. Finally, the judgment determines that the magistrate, when recognizing the intercurrent prescription, substantiates the judicial act, delimiting the legal frameworks that were applied in the counting of the term.

In order to adapt to the means of collection, the Attorney General's Office of the National Treasury (PGFN) requested the modulation of the effects of this decision by the STJ, as it will have a great financial impact on the Public Treasury. The PGFN, however, has already implemented, through Ordinance 396/2016, the Differentiated Credit Collection Regime - RDCC, which consists of a set of administrative and judicial measures aimed at optimizing the collection methods of the Active Debt of the Union , observing criteria of economy and rationality for greater efficiency in the recovery of tax credits. However, the request was denied by the ministers, on the grounds that this would generate legal uncertainty, precisely what the modulation of effects seeks to avoid.

In view of this judgment, it is possible to conclude that, more important than the mere observance of formalities, the country's jurisprudence has evolved in the sense of giving greater relevance to the analysis of the content of the manifestations, opening space for the application of fundamental norms, such as due legal process, and the principles of proportionality, reasonableness, legality, publicity and efficiency. And this allows the process to reach its social end within a reasonable period of time.

Source: Claudia Gardin Martins, attorney at Cesar Peres Dulac Müller, specializes in State Law.

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