In the cases of micro and small enterprises that have had their registration dissolved at the Federal Revenue Service – even without the issuance of a tax compliance certificate –, it is possible to hold the partners liable for any default in the payment of the legal entity’s taxes, under the terms of Article 134, item VII, of the National Tax Code (CTN).
The understanding was reaffirmed by the Second Panel of the Superior Court of Justice (STJ) in reversing a ruling of the Federal Regional Court of the 4th Region (TRF4) which, in a tax foreclosure action, upheld the judgment dismissing the proceedings after finding that the microenterprise had already had its registration status dissolved at the Revenue Service before the action was filed.
According to the TRF4, the tax foreclosure against the microenterprise concerned taxable events that occurred in a period during which Supplementary Law 147/2014 was not in force; there was, however, a provision for joint and several liability, under the terms of Article 9, paragraphs 3 and 5, of Supplementary Law 123/2006 (the legislation that regulates micro and small enterprises).
However, in the understanding of the TRF4, the liability of the partners in the case analyzed should not be recognized, in view of the need to prove the situations of irregular dissolution provided for in Article 135, item III, of the CTN – such as the presence of an act by the managing partners with abuse of power or violation of the law, of the articles of association, or of the bylaws.
Micro and small enterprises may be dissolved without a tax compliance certificate
Justice Mauro Campbell Marques emphasized that the case in the records cannot be framed under the hypothesis of irregular dissolution of the company – a situation in which Article 135 of the CTN would, in fact, be applicable –, in view of the fact that the legislation applicable to micro and small enterprises provides for the possibility of regular dissolution without the presentation of the tax compliance certificate.
The rapporteur pondered that this provision seeks to facilitate the termination of the legal entity’s activities, but cannot serve as a shield for the non-payment of tax debts.
“It must be considered that Article 9, paragraphs 4 and 5, of LC 123/2006 itself, in dealing with the dissolution of the company’s instrument of incorporation, clarified that such act does not imply the extinction of the fulfillment of tax obligations, nor the removal of the liability of the partners, bringing the case closer to that set forth in Article 134, item VII, of the CTN”, the rapporteur pointed out.
In voting to grant the appeal, Mauro Campbell Marques ordered that the managing partner of the microenterprise be included on the passive side of the tax foreclosure. Subsequently, the partner may present a defense, in order to remove, if applicable, his liability for the debts.
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