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.
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.
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.