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Date: March 12, 2019
Posted by: CPDMA Team

Redirection of tax execution requires disregard of the legal entity

The redirection of tax enforcement to a legal entity that is part of the same economic group as the executed company, but which was not identified in the Active Debt Certificate, depends on the establishment of the incident of disregard of the legal entity's personality.

The decision is from the 1st Panel of the Superior Court of Justice when applying the incident provided for in article 133 of the Civil Procedure Code of 2015. According to the collegiate - as provided for in article 50 of the Civil Code -, in order to redirect the execution, it is necessary to prove the abuse of personality, characterized by deviation of purpose or patrimonial confusion. Based on this understanding, the ministers unanimously overturned the judgment of the Federal Regional Court of the 4th Region, which had concluded in favor of the solidarity of legal entities and waived the initiation of the incident.

In the decision, the group applied the IDPJ to allow the defense of one of the partners of the executed economic group, but maintained the possibility for the National Treasury to execute the partner or company of the same economic group through the application of the CTN - which provides for the so-called redirection and does not require prior defense.

The case is unprecedented in the STJ and involves an appeal by a business company, included in the collection of another company of the same economic group. The value of the tax execution proposed by the Union reaches around R$ 108 million.

The appellant company (against which the execution was redirected) requested a review of the decision of the TRF-4, requesting the establishment of the IDPJ to present its defense and be able to question the disregard. It claimed that the mere existence of an economic group would not authorize the redirection of execution.

The TRF-4 denied the company's appeal and recognized the joint liability of other legal entities in the execution promoted by the National Treasury, as the companies are part of the same economic group.

The 1st Panel noted that the IDPJ cannot be instituted in the tax enforcement process in cases where the Treasury intends to reach a legal entity other than the one against which the execution was originally filed, but whose name appears in the CDA or, even if the name is not on the enforceable title, the Tax Authorities demonstrate its responsibility, as a third party, in accordance with articles 134 and 135 of the CTN.

"Without the indication of the legal entity in the act of entry, or in the absence of the hypotheses of articles 134 and 135 of the CTN, the attribution of responsibility to the economic group or to the legal entity that integrates it will depend on the disregard of the legal personality, whose recognition can only be obtained with the establishment of the aforementioned incident”, explained the rapporteur of the special appeal, Minister Gurgel de Faria. According to him, article 134 of the CPC/2015 establishes that the incident of disregard is applicable at all stages of the knowledge process, in compliance with the sentence and in the execution based on an extrajudicial enforcement order.

However, according to the minister, in paragraph 2 of article 134, the CPC exempts "the initiation of the incident if the disregard of legal personality is required in the initial petition, in which case the partner or legal entity will be cited".

Citing the jurisprudence of the court, the rapporteur highlighted that the CTN, in its article 134, authorizes the redirection of the tax execution to the partners when it is not possible to demand the tax credit of the liquidated company, without disregarding the personality of the debtor legal entity, since the legislation previously establishes the tax liability of the third party and allows the collection of the tax credit.

“If the request for redirection of the tax execution targets legal entities not listed in the Active Debt Certificate, after proof, by the Treasury, of the characterization of a legal hypothesis of liability of the nominated third parties, the magistrate may also decide to include it in the defendant's position without the establishment of the disregard incident, as the liability of third parties dealt with in the National Tax Code does not require the debtor legal entity to be disregarded”, he observed.

According to Gurgel de Faria, with the exception of a prior express provision in the law on the liability of third parties and the abuse of legal personality, the fact of being part of an economic group does not make a legal entity liable for taxes not paid by others.

When deciding to apply the IDPJ to the case under analysis, the rapporteur explained that "the redirection of tax execution to a legal entity that is part of the same economic group as the business company originally executed, but which was not identified in the act of launching (name in the CDA) or that does not fit into the hypotheses of articles 134 and 135 of the CTN, depends on the proof of personality abuse, characterized by the deviation of purpose or patrimonial confusion, as stated in article 50 of the Civil Code - hence why, in this case, it is necessary to establishment of the incident of disregarding the personality of the debtor legal entity”, he said.

The minister also highlighted that the attribution of tax liability to managing partners, under the terms of article 135 of the CTN, does not depend on the IDPJ provided for in article 133 of the CPC/2015, as the responsibility of the partners is attributed by the law itself, in a personal way. and subjective, in the case of “acts practiced with excess of powers or violation of law, articles of association or statutes”.

Upon granting the appeal, the group determined the return of the case to the TRF-4 so that it can order the establishment of the IDPJ in the case before deciding the claim of the National Treasury.

Source: Conjur.

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