For years, the matter of how the Public Treasury should behave when becoming aware of the bankruptcy of a legal entity that has a tax enforcement proceeding n(s) against it pending trial was discussed.
Several legal controversies have arisen regarding the possibility of submitting tax credits to the pool of creditors instated by the bankruptcy decree, in accordance with the provisions of Articles 186 and 187 of the National Tax Code (CTN) and article 29 of Law No. 6,830/80 (Tax Enforcement Law). There was also debate about what would be the ideal outcome for the tax enforcement proceeding – termination or suspension – in the event that the Public Treasury chooses to file a proof of claim before the bankruptcy court.
In May 2020, when judging the Special Appeal (REsp) nº 1,857,055 involving the bankrupt airline Vasp, the 3rd Panel of the Superior Court of Justice (STJ) understood that the fact that the Treasury filed the tax enforcement before the decree of bankruptcy would not prevent it from opting for filing a proof of claim within the bankruptcy proceeding. In this decision, it was understood that Article 187 of the CTN does not represent an impediment to the proof of claim, but rather a prerogative of the public entity, who can choose between tax enforcement and bankruptcy proof of claim. However, once opting for the proof of claim, it would be necessary to suspend the tax enforcement.
The 4th Panel of the STJ has a similar understanding, thus consolidating the understanding of the 2nd Section of the STJ on the issue.
The Group of Reserved Chambers of Corporate Law of the Court of Justice of São Paulo, adopting the understanding of the 2nd Section of the STJ, published on January 16, 2020 the Enouncement XI, determining that "the Public Treasury´s option to file a proof of claim to collect its tax credit within bankruptcy proceeding does not require the termination of the tax enforcement proceeding, provided that it proved it has suspended the tax enforcement proceeding in regard to the bankrupt entity". The statement is currently under review, as recently released by the state court.
Although it admitted the possibility of the Public Treasury to file a proof of claim even with the existence of a previous tax enforcement, the 1st Panel of the STJ understood that it would not be necessary to suspend or terminate the tax enforcement proceeding. Both judicial measures could run simultaneously , provided that there was no act of constriction in the tax proceeding. According to that decision, the mere existence of a tax enforcement would not be a guarantee of receipt of the claim due to the public treasury, so that there would be no bis in idem, i.e. the two options would not be being admitted simultaneously.
Little was said about what subjects would be processed and judged by the bankruptcy court, if the Public Treasury decided to file the proof of claim and suspend the tax enforcement proceedings. In other words, would the bankruptcy court have the competence– or even the expertise necessary – to assess matters that would, until then, be assessed by the tax enforcement court, such as the existence, legitimacy and enforceability of the tax credit?
Based on the original wording of Law No. 11,101/2005 (Law of Recovery and Bankruptcy), jurisprudence and doctrine did not address this theme. Marcelo Barbosa Sacramone, however, had an understanding on the subject. For him, if the National Treasury waived the privilege of maintaining its tax enforcement proceeding and chose to file the proof of claim before the bankruptcy court in order to collect its credit in a quicker manner, the bankruptcy court would then become competent to asses and rule on any matter – including the analysis of merit – that involved that credit.[1]
The wording of the new Article 7a of the Recovery and Bankruptcy Law, included by Law No. 14,112/2020, seems to clarify the issue by creating a proper mechanism for tax credits´ proof of claim.
In addition, Paragraph 4, items I and II of Article 7a, delimits which topics related to tax credits would be of the bankruptcy court´s competence, and which would be of the tax enforcement´s competence[2].
In line with the CTN and the Tax Enforcement Law – article 5 of which determines that the competence to asses and rule on the enforcement debt of the Public Treasury registered in the overdue tax debt roster excludes that of any other , including the bankruptcy court – the competence to rule on the existence, if the debt is demandable and the value of credit will be of the tax enforcement court. In other words, the analysis of the merits of the tax enforcement will not be assessed by the bankruptcy court, but by the tax enforcement court.[3]
It is up to the bankruptcy court to rule on topics such as calculation and classification of claims, in addition to those related to the collection of assets, disposial of assets and crditors´payment.[4]
Paragraph 4(V) of Article 7a – in view of the competence of the tax enforcement court to assess the matter mentioned above – states that "tax enforcement proceeding will remain suspended until the bankruptcy is terminated, exception made to the possibility of pursuing co-liable parties."
Despite the changes introduced by Law No. 14,112/2020, which entered into force on January 23, 2021, the 1st Section of the STJ, in May of this year, unanimously referred to trial under the rite of repetitive appeals REsp 1.891.836/SP, theme 1,092, with the following thesis at issue: "Possibility of the Public Treasury filing a proof of claim regarding a tax credit which is subject to an ongoing tax enforcement proceeding".[5]
Although the National Treasury has suggested that the thesis should not be made in relation to proof of claims made after Law No. 14,112/2020 came into force – considering that it expressly included the possibility of filing a proof of claim even if there is already an ongoing tax enforcement proceeding –, Minister Gurgel de Faria (rapporteur for the appeal) considered that this issue should be dealt with when the merits of the legal question are examined. Thus, currently, the outcome of the subject is awaited.
[1] "If you waive this privilege and file the proof of claim before the bankruptcy court, the bankruptcy court becomes competent for the assessment of all matters involving that claim. The justification is that the privileged treatment of the tax credit is guaranteed so that it continues with tax enforcement, so that only that judgment can assess the various issues involving that claim, such as prior payment, the absence of the obligation or possible compensation.
However, in order to accelerate its satisfaction, the Treasury could waive the privilege of maintaining its tax enforcement proceeding and choose to file the proof of claim before the bankruptcy court . With the waiver, it would allow all questions to be assessed by the bankruptcy court itself, so that it can define whether and by what amount the credit should be enforced. What cannot occur, however, is the bis in idem, i.e. having your credit paid by two different choices. The proof claim, if submitted after the filing of the tax enforcement, must be terminated, for lack of interest to act. This is because there can be no overlap of forms of satisfaction."
SACRAMONE, Marcelo Barbosa (Comments to the Business Recovery and Bankruptcy Act. São Paulo: Saraiva, 2018, p. 83.
[2] It is necessary to clarify that there are still no judgments facing this issue, due to the fact that Law No. 14,112/2020 is recent and has entered into force only at the end of January 2021.
[3] SACRAMONE, Marcelo Barbosa. Comments to the Business Recovery and Bankruptcy Act. São Paulo: Saraiva, 2021, p. 121.
[4] The issue of the constriction of assets was also the subject of Theme 987 of the STJ - "Possibility of the practice of constrictive acts, in the face of a company in judicial recovery, in the case of tax enforcemente of tax and non-tax debt" – which, however, lost its object due to the new provisions of the Recovery and Bankruptcy Law brought by Law No. 14,112/2020.
[5] Also, unanimously, it was decided to suspend special appeals at second instance and/or in the Superior Court related to this subject.
