Cesar Peres Dulac Müller logo


Date: February 22, 2019
Posted by: CPDMA Team

STJ removes disregard of legal personality in tax execution

The incident does not apply to the 1st Panel if the Treasury is based on articles 134 and 135 of the CTN.

The 1st Panel of the Superior Court of Justice (STJ) discussed, this Thursday (2/21), whether an incident of disregard of legal personality (IDPJ) should be instituted in a tax foreclosure before the redirection of a tax debt to partners , administrators or other legal entities related to the debtor. In other words, should tax enforcement be stopped until the judge assesses whether third parties are in fact responsible for the debt?

The Panel unanimously decided that, as a rule, it is not possible to institute the incident in the cases of redirection provided for by the National Tax Code (CTN), or when third parties appear on the Active Debt Certificate (CDA) at the end of a tax administrative process that appreciated the responsibility.

The ministers emphasized articles nº 124 (item II), 134 and 135 of the CTN. That is, the IDPJ does not apply if the Treasury collects the debt from administrators, directors, partners and others when there is liquidation of the company, express legal determination, excess of powers or violation of law, contract or statute.

"As a rule, the IDPJ is not required. But, since the situation is not foreseen in the CTN's hypotheses, in my view there is a need to initiate the incident" (Minister Gurgel de Faria, rapporteur of the cases, during the trial).

The Panel discussed the controversy over the IDPJ, which does not require the presentation of a guarantee by taxpayers, within the scope of special appeals No. 1,775,269 and No. 1,173,201, analyzed together. The matter is unprecedented in the collegiate.

As an exception, the collegiate highlighted the hypothesis in which the National Treasury bases the collection wrongly on item I of article 124 of the CTN, which allows companies of the same economic group to be held liable when there is a common interest in the debtor's taxable event.

common interest

In the case of item I of article 124 of the CTN, the ministers pointed out that the common interest of the alleged joint and several liability in the occurrence of the taxable event must be proven. This is because, by itself, the fact that companies are part of an economic group does not characterize responsibility.

If, in the judge's opinion, the Treasury fails to demonstrate the common interest, the redirection could also be requested if the misuse of purpose or the patrimonial confusion of the companies is proven, based on article 50 of the Civil Code. In this case, the STJ understood that it is the IDPJ.

The first lawsuit (REsp No. 1,775,269) opposes the National Treasury and Agroindustrial Irmãos Dalla Costa, which sells beef, pork and poultry products. The Farm executed the agro-industry to answer for a debt of R$ 100 million in PIS and Cofins charged to a company with a similar corporate purpose and belonging to the same economic group, whose partners are a father and three children.

However, the company to which the debt was redirected did not exist at the time of the events giving rise to the contributions. Thus, the ministers of the 1st Panel understood that the Treasury improperly based the request on article 124.

“The company did not even exist at the time of the triggering event. So the common interest could not be glimpsed at that time. In view of this specificity of the specific case, I am observing that here it is effectively necessary to establish the incident”, said Minister Gurgel de Faria during the trial.

Thus, in the specific case, the STJ overturned the decision of the second instance and determined that the Federal Regional Court of the 4th Region (TRF4) institute the IDPJ before redirecting the tax execution.

In practice

The incident of disregard of legal personality was introduced by the new Civil Procedure Code (CPC), of 2015. The National Treasury emphasizes that the matter has special relevance in smaller cities, in the interior of the country, without specialized tax enforcement courts.

Risk is the squandering of assets, says Fazenda

As the IDPJ does not require a debt guarantee and can last for years, during this period the Treasury warns that the executed third parties can hide or dispose of the assets, in order to avoid the attachment or blocking of properties, bank accounts and other assets. “[The IDPJ] can last for years. Until then, you can squander your heritage. And it is a way to present a defense in the execution without guarantee”, warned prosecutor Gabriel Matos Bahia, from the National Treasury.

However, the Treasury usually requests redirection, mainly based on article 135 of the CTN, which deals with acts performed with excess of powers or violation of law, contract or statute. In the case of this article, the STJ decided that the IDPJ does not fit in the tax execution, since the responsibility is provided for in the law.

Source: Jamile Racanicci via Jota.


Recent posts

Discover the asset class - INDUSTRIAL DESIGN

In our series of posts explaining the differences between classes of intellectual assets, today we're going to look at INDUSTRIAL DESIGN. Industrial Design is the ornamental plastic form of an object - for example, the design of a product or the set of lines applied to a product, such as a print - that gives it [...]

Read more
Learn about the asset class - PATENTS

A PATENT is a title of ownership granted by the State over an unpublished invention (invention patent) or one derived from an existing one (utility model patent). The application for registration is made to the INPI, granting the holder the right to prevent third parties from manufacturing, using or offering for sale [...].

Read more
Corporate name: get to know this asset class

Continuing with our series of posts explaining the differences between the classes of intellectual assets, today we'll look at the BUSINESS NAME. Although trademarks - the nature of which has already been described in the previous post - can sometimes be confused with business names, they are distinct legal institutes. The business name identifies the company by [...]

Read more
PERSE: legislative changes in the emergency program to revive the events sector

Law No. 14,859/2024: amendment of the Perse rules for the period 2024 to 2026. The Emergency Program for the Resumption of the Events Sector - Perse was created in 2021 with a view to helping companies linked to the events sector - the activity most affected by the COVID-19 pandemic, by reducing [...]

Read more
The extent of insurance cover in floods

The rains that have hit Rio Grande do Sul in recent weeks have destroyed farms, properties and vehicles. Even if they have insurance, car or property owners should check the coverage of their policies to see if they can get compensation. Basic insurance for cars and properties does not usually cover floods. Insurance against electrical breakdown, [...]

Read more
The agreement to sell the most famous slimming drug of the moment

It was recently reported that the Brazilian company BIOMM has signed an agreement with the pharmaceutical industry BIOCON to distribute in Brazil a drug similar to Ozempic, indicated for the treatment of diabetes, but used mainly to treat obesity. However, this will only be possible because the patent holder of the drug has certainly authorized, through a [...]

Read more
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram