The Court rules that it is necessary to institute the Incident of Disregard of Legal Personality (IDPJ) – provided for in article 133 of the 2015 Code of Civil Procedure – when tax enforcement proceedings are redirected to a legal entity that is part of the same economic group as the company originally subject to enforcement, but which was not identified in the assessment act (in the Certificate of Outstanding Tax Debt) or which does not fall within the circumstances of articles 134 and 135 of the National Tax Code (CTN).
According to the panel, in order for the enforcement to be redirected, it is necessary to prove abuse of legal personality, characterized by deviation of purpose or commingling of assets.
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Based on this understanding, the justices, unanimously, quashed a ruling of the Federal Regional Court of the 4th Region (TRF4) which had concluded that the legal entities were jointly liable and had dispensed with the institution of the incident.
In the decision, the panel applied the IDPJ to allow the defense of one of the partners of the economic group subject to enforcement, but maintained the possibility that the National Treasury could enforce against the partner or the company of the same economic group through the application of the CTN – which provides for the so-called redirection and does not require a prior defense.
Disregard of legal personality
The case is unprecedented at the Superior Court of Justice (STJ) and involves an appeal by a business company included in a collection action against another company of the same economic group. The amount of the tax enforcement proposed by the Union reaches around R$ 108 million.
The appellant company (against which the enforcement was redirected) requested a review of the TRF4 decision, requesting the institution of the IDPJ in order to present its defense and to be able to challenge the disregard. It argued that the mere existence of an economic group would not authorize the redirection of the enforcement.
The TRF4 denied the company’s appeal and recognized the joint liability of other legal entities in the enforcement promoted by the National Treasury, on the grounds that the companies made up the same economic group.
Partners
The First Panel noted that the IDPJ cannot be instituted in tax enforcement proceedings in cases in which the Treasury intends to reach a legal entity distinct from the one against which the enforcement was originally filed, but whose name appears on the Certificate of Outstanding Tax Debt (CDA) or, even where the name is not on the enforcement instrument, where the tax authority demonstrates its liability, in the capacity of a third party, in accordance with articles 134 and 135 of the CTN.
“Without the indication of the legal entity in the assessment act, or where the circumstances of articles 134 and 135 of the CTN are absent, the attribution of liability to the economic group or to the legal entity that is part of it will depend on the disregard of legal personality, the recognition of which can only be obtained by instituting the aforementioned incident,” explained the rapporteur of the special appeal, Justice Gurgel de Faria.
According to him, article 134 of the CPC/2015 establishes that the disregard incident is applicable in all phases of the cognition proceedings, in the enforcement of judgment, and in enforcement based on an extrajudicial enforcement instrument.
However, according to the justice, in paragraph 2 of article 134, the CPC dispenses with “the institution of the incident if the disregard of legal personality is requested in the initial petition, in which case the partner or the legal entity will be summoned.”
Case law
Citing the court’s case law, the rapporteur highlighted that the CTN, in its article 134, authorizes the redirection of tax enforcement to the partners when it is not possible to demand the tax credit from the liquidated business company, without disregarding the personality of the debtor legal entity, since the legislation establishes in advance the tax liability of the third party and allows the collection of the tax credit.
“Should the request for redirection of the tax enforcement target legal entities not listed in the Certificate of Outstanding Tax Debt, after the Treasury has proven the characterization of a legal hypothesis for holding the indicated third parties liable, the judge may also decide on their inclusion on the defendant’s side without instituting the disregard incident, since the holding of third parties liable dealt with in the National Tax Code does not require the disregard of the debtor legal entity,” he observed.
Liability
According to Gurgel de Faria, except for an express prior legal provision concerning the liability of third parties and the abuse of legal personality, the fact of being part of an economic group does not render one legal entity liable for the taxes not paid by the others.
In deciding to apply the IDPJ to the case under analysis, the rapporteur explained that “the redirection of tax enforcement to a legal entity that is part of the same economic group as the business company originally subject to enforcement, but which was not identified in the assessment act (name on the CDA) or which does not fall within the circumstances of articles 134 and 135 of the CTN, depends on proof of abuse of legal personality, characterized by deviation of purpose or commingling of assets, as set forth in article 50 of the Civil Code – which is why, in this case, it is necessary to institute the incident of disregard of the personality of the debtor legal entity,” he said.
The justice also highlighted that the attribution of tax liability to managing partners, under the terms of article 135 of the CTN, does not depend on the IDPJ provided for in article 133 of the CPC/2015, since the liability of the partners is attributed by the law itself, in a personal and subjective manner, in the case of “acts performed with excess of powers or violation of law, articles of association, or bylaws.”
In granting the appeal, the panel ordered the return of the case records to the TRF4 so that it would order the institution of the IDPJ in the case before deciding on the National Treasury’s claim.
Source: STJ
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