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Date: November 21, 2019
Posted by: CPDMA Team

STJ indicates change in understanding on tax certificate

Ministers of the 3rd Panel indicated that they would require the document if the case under analysis dealt with recovery after Law No. 13,043/2014.

The Superior Court of Justice (STJ) may change the understanding that exempts companies undergoing judicial recovery from presenting a Clearance Certificate of Debt (CND). In judgment this week, the ministers of the 3rd Panel indicated that they would require the document if the case under analysis dealt with recovery after Law No. "brief".

The requirement of the certificate is provided for in article 57 of the Judicial Recovery and Bankruptcy Law (nº 11.101, of 2005). This provision establishes that the document must be presented to the judge after the payment plan that was agreed with the creditors at a general meeting has been added to the records. It would be one of the requirements for granting the recovery.

But companies have always managed to avoid this requirement because of another article of the law. 68 provides for an installment payment of debts with the Public Treasury. There is a decision of the Special Court of the STJ of 2013 in this regard (REsp No. 1187404). The ministers understood that, as there was no such program at that time, there would be no way to demand the presentation of a tax certificate.

But the installment plan was instituted in 2014 and since then the case law has not been reviewed by the STJ. In the first and second instances, the decisions are divergent. Part of the judges demand the presentation of the CND and another part still waives. The main argument of those who do not need to present the document is that the program established by Law No. 13,043 did not meet the needs of the market. There are 84 installments and there are no discounts on interest and fines.

The STJ has not yet faced this discussion. There was an expectation that it could occur on Tuesday because the case being analyzed by the 3rd Panel, despite being before the installment law, had a particularity: the company requested the approval of a new payment plan in 2015 - or that is, one year after the program was instituted.

The company involved in this process is Recrusul, from the state of Rio Grande do Sul, of road implements (REsp nº 1719894). For the company's representative, Fellipe Bernardes da Silva, there was no way to apply the installment rule to this case because it was not a case of granting judicial recovery. "What happened was a change in the plan and, in this case, article 57 of the law does not apply," he told Valor. As for the Attorney General's Office of the National Treasury (PGFN) the rule should have been applied and the installment law would have to be taken into account. “This reformulation of the plan needs to fulfill all the formal requirements and, among them, the presentation of the CND”, maintained the attorney João Grognet, general coordinator of strategies for the general recovery of credits at PGFN.

He drew attention, in the 3rd Panel's tribune, that the debt in the case under analysis was R$ 86 million - R$ 51 million with Social Security. The reformulation of the creditors' payment plan, he said, involves the sale of the only property, which would serve to pay even the debts of the class of unsecured creditors, who, in a bankruptcy process, for example, are well behind the tax authorities in the order of priority. for receipt.

Rapporteur of the case, Minister Nancy Andrighi, said she was “sensitive to the prosecutor's statements”, but, in her understanding, the law could not retroact. She denied the PGFN's appeal, but indicated that if it were not for the procedural issue, she would comply with the request. “It is only in the face of this, these arguments of non-retroactivity, that I am not providing the resource”, he emphasized.

The minister's understanding was unanimously followed by the class. Marco Aurélio Bellizze and Villas Bôas Cueva stated that they should “shortly” discuss the matter. “We are not in a position to modify, in the class, a jurisprudence of the Court that only dealt with an issue prior to the 2014 law. But I am dealing with a special appeal”, said Bellizze.

Source: Joice Bacelo via Valor Econômico.

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