Post by xyz3800 on Feb 28, 2024 8:04:49 GMT
The redirection of tax enforcement to a legal entity that is part of the same economic group as the executed business company, but that was not identified in the Active Debt Certificate, depends on the establishment of the incident of disregarding the personality of the legal entity. The decision was made by the 1st Panel of the Superior Court of Justice when applying the incident provided for in article 133 of the 2015 Code of Civil Procedure. According to the panel — as provided for in article 50 of the Civil Code —, in order to redirect the execution, it is necessary to prove the abuse of personality, characterized by misuse of purpose or confusion of assets. Based on this understanding, the ministers, unanimously, overturned the ruling of the Federal Regional Court of the 4th Region, which had concluded that the legal entities were in solidarity and dismissed the initiation of the incident.
In the decision, the group applied the IDPJ to allow the defense of one of the partners of the executed economic group, but maintained the possibility of the National Treasury executing the partner or company from the same economic group through the application of the CTN — which provides for the so-called redirection and does not require prior defense. The case is unprecedented in the STJ and involves an appeal from a Exit Mobile Number List business company, included in the collection of another company in the same economic group. The value of the tax execution proposed by the Union reaches approximately R$108 million. The appellant company (against which the execution was redirected) requested a review of the TRF-4 decision, requesting the establishment of the IDPJ to present its defense and be able to question the disregard.He claimed that the mere existence of an economic group would not authorize the redirection of the execution.
The TRF-4 denied the company's appeal and recognized the joint responsibility of other legal entities in the execution promoted by the National Treasury, as the companies make up the same economic group. The 1st Panel noted that the IDPJ cannot be introduced in the tax executive process in cases where the Treasury intends to reach a legal entity other than the one against which the execution was originally filed, but whose name is included in the CDA or, even if the name is not in the executive title, the Tax Authority demonstrates its responsibility, as a third party, in accordance with articles 134 and 135 of the CTN. “Without the indication of the legal entity in the act of launch, or if the hypotheses of articles 134 and 135 of the CTN are non-existent, the attribution of responsibility to the economic group or the legal entity that is part of it will depend on the disregard of the legal personality, whose recognition can only be obtained with the initiation of the aforementioned incident”, explained the rapporteur of the special appeal, Minister Gurgel de Faria
In the decision, the group applied the IDPJ to allow the defense of one of the partners of the executed economic group, but maintained the possibility of the National Treasury executing the partner or company from the same economic group through the application of the CTN — which provides for the so-called redirection and does not require prior defense. The case is unprecedented in the STJ and involves an appeal from a Exit Mobile Number List business company, included in the collection of another company in the same economic group. The value of the tax execution proposed by the Union reaches approximately R$108 million. The appellant company (against which the execution was redirected) requested a review of the TRF-4 decision, requesting the establishment of the IDPJ to present its defense and be able to question the disregard.He claimed that the mere existence of an economic group would not authorize the redirection of the execution.
The TRF-4 denied the company's appeal and recognized the joint responsibility of other legal entities in the execution promoted by the National Treasury, as the companies make up the same economic group. The 1st Panel noted that the IDPJ cannot be introduced in the tax executive process in cases where the Treasury intends to reach a legal entity other than the one against which the execution was originally filed, but whose name is included in the CDA or, even if the name is not in the executive title, the Tax Authority demonstrates its responsibility, as a third party, in accordance with articles 134 and 135 of the CTN. “Without the indication of the legal entity in the act of launch, or if the hypotheses of articles 134 and 135 of the CTN are non-existent, the attribution of responsibility to the economic group or the legal entity that is part of it will depend on the disregard of the legal personality, whose recognition can only be obtained with the initiation of the aforementioned incident”, explained the rapporteur of the special appeal, Minister Gurgel de Faria