Lassori, representing a client in the transportation sector that was assessed for the payment of a fine because its customers had – after the rendering of transportation services – their state registration revoked, filed an appeal with the Court of Justice requesting an urgent injunction to suspend the enforceability of the tax credit.
The suspension is important to prevent the fine charged by the São Paulo State Department of Finance (Secretaria da Fazenda) from being collected through a tax foreclosure action, which would mean restrictions in the credit protection agencies and the attachment of the company’s financial assets.
However, the trial court judge required the deposit of the full amount of the fine in order to suspend its enforceability.
In ruling on the appeal, the Court granted active suspensive effect until the final judgment of the appeal, in order to allow the suspension of the enforceability of the tax credit, by means of judicial guarantee of the tax credit in the present action with a vehicle owned by the company as security.
The decision is an important precedent because it allowed the company to offer a movable asset (a vehicle) as security, modifying the trial court decision, since, first, the arguments presented demonstrate strong evidence that the company is a good-faith merchant and, second, that the cash deposit of the amount charged by the State Department of Finance would impact the company’s cash flow and, consequently, cause harm to its activities.
In the grounds for the appeal, the carrier’s arguments were that, notwithstanding the presumption of legitimacy operating in favor of the tax authorities and their police power, it is necessary to observe the thesis established in the judgment of Special Appeal (REsp) 1.148444/MG, namely that, once the truthfulness of the commercial transaction is demonstrated, the good-faith merchant should not be penalized because the act declaring unfitness only produces effects as of its publication.
In the case defended by the firm, the State Treasury seeks for the declaration of unfitness, even though declared months after the rendering of the transportation services, to have retroactive effect, contrary to Theme 272 of the Superior Court of Justice (STJ), which holds that the declaration of unfitness only takes effect after its publication.
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