The court establishes that the tax administration must not issue a Tax Clearance Certificate (CND)—or even a Positive Certificate with the effect of a Tax Clearance Certificate (CPEND)—for a branch when there is a tax default against the head office or another branch of the same group.
The panel granted the divergence motions (embargos de divergência) filed by the National Treasury against a ruling of the Second Panel, which held that the existence of a debt in the name of the branch or of the head office does not prevent the issuance of the tax compliance certificate in favor of one or the other.
The appellant pointed to a different understanding of the First Panel, according to which “branches are secondary establishments of the same legal entity, devoid of their own legal personality and assets”, such that this relationship of dependence prevents the issuance of the tax compliance certificate when the existence of a tax debt is verified in the name of some establishment belonging to the business group.
A branch has no legal personality
In recalling the rules on the subject, the reporting justice emphasized the absence of legal personality of the branch and “the existence of the attribute of unity of the legal entity governed by private law, including when the head office and branch establishments are compared”.
According to the magistrate, the branch is not constituted by means of the registration of an instrument of incorporation, and it also entails a secondary configuration in relation to the legal entity governed by private law, with its registration in the National Registry of Legal Entities (CNPJ) deriving from the considerable scope of the “single national registry identification”.
The justice stressed that the certification of tax compliance is directed at the passive subject of the tax obligation, an entity vested with legal personality.
“A de facto company may carry out commercial operations and, thereby, give rise to the obligation to pay the Tax on the Circulation of Goods and on Interstate and Intermunicipal Transportation and Communication Services (ICMS). However, it cannot appear on the passive pole of the obligation, since it is devoid of legal personality, with the individuals managing it being liable for the tax debt”, she explained.
Culture of tax compliance of the business corporation
The justice observed that the First Section, in judging Theme 614 of the repetitive appeals, consolidated the understanding that the branch, despite having its own CNPJ, does not constitute a new legal entity, which is why the debts related to triggering events attributed to a given establishment constitute, in fact, a tax obligation of the “business corporation as a whole”.
According to the reporting justice, given the lack of legal personality of the branch, which derives from the unity of the legal entity governed by private law, obtaining the CND or the CPEND is conditioned upon the entirety of the tax situation of the entity holding legal personality—whether the eventual defaults originate from the head office or from the branch.
For the magistrate, the circumstance that the branch is registered in the CNPJ is insufficient to set aside the unity of the legal entity governed by private law. “In addition, the joint effort among the operational units of the business corporation—head office and branch—in the expansion and strengthening of the business demands the culture of tax compliance, which encompasses the commitment to the transparency of the legal entity considered in its entirety”.
Source: STJ
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