Cesar Peres Dulac Müller logo

CPDMA BLOG

Category:
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.

Return

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
crossmenuchevron-down
en_USEnglish
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram