The Federal Regional Court (TRF) of the 3rd Region, headquartered in São Paulo, deemed it necessary to open a period for the submission of a defense before redirecting tax collection (tax foreclosure) by the National Treasury to partners or third parties. The procedure is called the Incident of Disregard of Legal Personality (IDPJ).
The article is from the newspaper Valor Econômico. The question was analyzed by the 18 appellate judges of the Special Body of the TRF. The ruling was begun in October 2019 and resumed on Wednesday, the 10th. After three different theses emerged in the discussions among the judges, the session was concluded.
The judgment has not yet been published. But tax law experts concluded that a prior IDPJ is necessary to redirect the tax foreclosure when the person is not included in the company’s Certificate of Outstanding Debt (CDA).
According to the prevailing vote, that of appellate judge Wilson Zauhy, as stated by tax experts, the IDPJ is “indispensable for proving liability arising from commingling of assets, irregular dissolution, formation of an economic group, abuse of rights, excess of powers, or violation of the law, the contract, or the bylaws (CTN, article 135, items I, II and II), and for the inclusion of persons who have a common interest in the situation constituting the triggering event of the principal obligation, provided they are not included in the CDA.”
As the judge’s vote cites the three items of article 135 of the CTN, it protects guardians, administrators of third-party assets, estate administrators, agents, directors, managers, and representatives of private-law legal entities, among others.
Created by the Code of Civil Procedure (CPC) of 2015, in practice the IDPJ prevents surprise measures by the Tax Authorities, such as the online attachment of financial resources of partners, or even of third parties who represent the company.
Read the full article on Valor’s website. You may also be interested in other content, such as:
Fine for delay in filing a tax return
Disregard of legal personality to allow a partner’s defense in tax foreclosure
Source: Valor Econômico / Laura Ignacio – 02/11/2021
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