June 3, 2023

Only those who closed a business illegally are liable for tax debts

Only a partner or official who participated in the irregular closing of the company can personally account for the tax debt of the legal entity to the public treasury. This occurs even when it was not part of the corporate or management structure at the time of the taxable event.

STJ has redirected limited tax enforcement against partners of businesses that have been illegally closed

Based on that understanding, the first division of the Supreme Court of Justice on Wednesday (5/25) closed the definition of theses in repeated appeals outlining how the Treasury could redirect tax enforcement against partners and directors of businesses that were wrongfully closed. , without incurring their own costs.

Two statements have been identified. In November 2021, I established the Collective Thesis on Topic 962, which specifies that only partners or directors who remain in the company can be targets of tax enforcement redirection.

Thus, the directive exempts those who were part of the company at the time of the taxable event, but who regularly left it prior to the irregular dissolution. At this point, there was no difference in the congregation, because guidance was already peaceful in common law classes.

It remains for the University to determine Subject 981, in order to find out whether the partner or officer who has irregularly dissolved the company can only be liable for the tax debt if he has already occupied that position at the time of the taxable event in question.

With a majority of votes, the first section gave a negative answer to this question. In other words, the Treasury can hold liability to those who shut down a business that owed taxes in an irregular manner, even if they were not directly responsible for creating the debt.

Minister Assuete Magalhães reports on the two repeated appeals in the first section of Syrians for Truth and Justice

The trial of Subject 981 closed Wednesday after Minister Hermann Benjamin’s vote. Until then, the matter divided the collective bodies of Syrians for Truth and Justice.

The thesis is subject to the interpretation of Article 135, Clause III, of the National Tax Code, which deals with the accountability of directors, directors or representatives of legal entities governed by private law for tax obligations.

For the first commission, a partner or officer who infrequently dissolved the company can only pay the tax debt if he or she is also responsible for it. That is, if he joins the company or manages it after the taxable event, he will not bear any responsibility.

That vision has been defeated. It was proposed in February, in a vote by Minister Regina Helena Costa, and accompanied by Ministers Jorgel de Faria and Benedetto Gonçalves, also part of the First Committee.

The position of the Second Committee was presented by Minister Assusete Magalhães, Rapporteur, both bis.

This is because the fact that someone is a partner or manages the company does not distinguish when the taxable event occurred, in and of itself, does not constitute a violation of law or statute.

On the other hand, the company’s irregular dissolution makes it categorically impossible for the Treasury to recover the tax credit. This law ignores the procedure imposed by civil business legislation, which provides for realization of a company’s assets and settlement of liabilities before it is closed.

“For this reason, the Judicial Authority may not prematurely withdraw the summons of a partner or official – who would be able to defend himself – when the Treasury so requests, until he can give explanations of any legitimate excuse for this flagrantly unlawful action. (irregular atomization)Minister Hermann Benjamin explained in the voting point of view.

Judgment in Case 981 was re-released by Minister Hermann Benjamin
Gustavo Lima

Avoid the gap
For the winning position in the first section judgment, the adoption of the thesis proposed by the members of the First Committee would create a gap for a solution that would not lead to social pacification, and would not allow credit to be recovered by the treasury.

This is because it will not be possible to collect the debt from the legal entity (where it was irregularly dissolved), nor from the manager who left the position prematurely without committing any illegal act, or even from the manager at the time of the infraction. The solution, if not in the company at the time of establishing the truth.

In the winning position, the irregular solution is the wrongful act that authorizes the treasury to redirect.

“Taking responsibility is the practice of an act that violates the law—in this case, the irregular solution, which is no fault. It makes no sense to take responsibility for the illegal solution being ‘inadvertently’ promoted.” Whether or not it exists are assets in The company will be illegally dissolved, and it is inconceivable that it no longer exists due to the involuntary act of six partners,” said Minister Hermann Benjamin.

The approved thesis in topic 962 is:

  • Redirection of tax enforcement, when based on the irregular dissolution of the executing legal entity or assuming it has occurred, cannot be permitted against a partner or a third non-partner who, although exercising administrative powers at the time of the taxable event, without being exposed in practice to acts of overpowered or in violation of law, statute or statute, regularly withdraws from it and does not cause its subsequent irregular dissolution, in accordance with Article 135, 3, of CTN.

The approved thesis in subject 981 is:

  • Tax enforcement may be redirected, when it is based on or presumed to occur, against the non-formal dissolution of the implementing legal entity, against third-party partners or non-partners who had administrative powers on the date on which the irregular or presumed dissolution was formed, even if management powers were not exercised when The occurrence of the catalytic event of the unpaid tax, in accordance with Article 135, Clause III, of the CTN.

Topic 962
REsp 1,377,019
REsp 1,776,138
REsp 1,787,156

Topic 981
REsp 1,643,944
REsp 1,645,281
REsp 1,645,333