Administrative fine – the courts of Minas Gerais ruled against the appeal filed by the Federal Government (União), which sought to redirect to the partners the tax foreclosure arising from administrative fines.
According to the judge, the attribution of liability to the partners and representatives of the legal entity is limited to tax obligations (article 135 of the National Tax Code (CTN) and Precedent 435 of the STJ).
This, however, was not the situation under analysis, since it concerned the foreclosure of administrative fines imposed on the company as a result of an infringement of labor legislation.
Another obstacle pointed out by the magistrate was that the continuation of the tax foreclosure against the partners would require a demonstration that they had acted with excess of power or in violation of the law, of the articles of association, or of the bylaws – facts not demonstrated in the case.
Furthermore, as the judge added, the mere finding that the company was inactive at the address of its tax domicile does not prove those circumstances.
In this regard, he recalled that the STJ adopted the understanding that the irregular cessation of activities does not, in itself, lead to the recognition of an abuse of power that would justify directing the foreclosure against the partners.
As if all these grounds were not enough, the judge further stressed that the Public Treasury is prohibited from redirecting the tax foreclosure against persons who do not appear in the active debt certificate, such as the partners and administrators of the company subject to foreclosure, as this would entail a change of the passive subject.
And, to conclude, he observed that on the due date of the fine the partners of the company subject to foreclosure had already withdrawn from the company more than two years earlier, according to the amendment to the articles of association.
Therefore, the legal time limit for holding the withdrawing partner liable had already expired, under the terms of articles 1032 and 1003, sole paragraph, both of the Civil Code.
For these reasons, the reporting judge upheld the appealed decision, an understanding that was followed by the other judges of the Panel (TRT).
Regarding proceeding 01284-2008-058-03-00-8 (AP) – Judgment on 08/17/2017
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