The existence of an ongoing criminal action, based on a complaint for a bankruptcy crime, according to the Superior Court of Justice (STJ), may authorize the redirection of the tax foreclosure to the managing partner of the company, depending on whether there is evidence of the materiality of the offense and indications of authorship.
The panel partially granted the request of the State of Rio Grande do Sul to reverse a ruling of the local Court of Justice (TJRS) which, in the records of a tax foreclosure brought against a supermarket, established that the redirection of the foreclosure to one of the partners – who is answering for a bankruptcy crime – would require the final and unappealable judgment of a criminal conviction.
The State argued that the managing partner of the supermarket was charged by the Public Prosecutor’s Office with the commission of a bankruptcy crime (Law 11.101/2005, article 168), which would lead to his personal liability for the credits under collection, as determined by article 135 of the National Tax Code (CTN).
Violation of the law
The rapporteur of the appeal stated that bankruptcy, according to the case law of the STJ, does not constitute an irregular dissolution and, therefore, is not a “certificate” that there would be violations of the law.
“The premise of the redirection is the commission of acts violating the law or the articles of association,” said the justice, adding that this violation may occur both within the scope of bankruptcy crimes and of civil or commercial legislation (article 4, paragraph 2, of the Tax Foreclosure Law).
According to the rapporteur, the redirection of the foreclosure to the partners, by reason of the acceptance of the complaint for the commission of bankruptcy crimes, must be carried out in the foreclosure court, based on an initial assessment of the materiality of the offense and the indications of authorship. Where there are indications or evidence of the commission of a violation of criminal law – he emphasized –, the hypothesis falls under article 135 of the CTN.
“It is important to add that even an eventual acquittal in a criminal action does not necessarily lead to the revocation of the redirection, since the act may not constitute a criminal offense and, even so, continue to represent a violation of civil, commercial, administrative law, etc. (independence of the civil sphere, in the broad sense, and the criminal sphere),” he stated.
Case by case
The justice emphasized that the judge competent to process and adjudicate the tax foreclosure must analyze, on a case-by-case basis, the content of the complaint for the commission of a bankruptcy crime and decide whether or not the redirection is appropriate. He observed that, contrary to what the TJRS decided, it is not necessary to await the final and unappealable judgment of the criminal conviction for the tax foreclosure court to analyze the request for redirection.
Thus, the rapporteur ordered the return of the records so that the state courts may examine whether the existence of a complaint for a bankruptcy crime allows or not, in the specific case, the redirection of the tax foreclosure.Source: STJ
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