The First Panel of the Superior Court of Justice – STJ will analyze whether the successive payment of tax installments under an amnesty program implies discharge of debt and should lead to a proportional reduction of the collateral offered by the taxpayer.
Following Justice Regina Helena's point of view, reporting judge, Justice Napoleão Nunes, withdrew the case from the agenda for judgment in order to reconsider his single-judge decision that granted the appeal of the tax authorities. The matter will now be submitted to the full bench of the court.
The debate regarding the legality of the "double guarantee" in view of attachments conducted in tax foreclosures and the subsequent adhesion of the taxpayer to an amnesty program is not new in the STJ.
The understanding of the Court is settled in the sense that an adhesion to an amnesty program does not allow for removal of the attachment previously carried out by the court. This is so because the payment of the installments under the amnesty program provided for by Law No. 11,941/09 would only give rise to the suspension of the tax debt, not to its extinguishment. Therefore, it would be necessary to maintain the attachment until the definitive extinction of the tax debt.
At first, the taxpayer argued that the maintenance of the attachment over the company's assets, after the adhesion to the amnesty program (REFIS), constituted an intolerable excess, which would characterize the institution of unlawful double collateral. The argument was that this would also violate the principle of equality, inasmuch as companies in tax foreclosures who provided collateral and later joined an amnesty program would be in a less favorable situation than those that did not suffer foreclosure and who, when adhering to an amnesty program, had no assets subjected to attachment. These two taxpayers would be both debtors and hence, should be treated equally.
In the case under discussion, a claim of unconstitutionality was filed under articles 10 and 11 of Law No. 11,941/09, which establish that attachments in tax foreclosures shall be maintained until the debt is fully paid. However, the Plenary Session of the STJ, by a majority of votes, concluded that these articles are compatible with article 156, VI, of the Brazilian Tax Code (CTN) and with the Federal Constitution.
The discussion, however, returned to the STJ with some particularities. In the case under analysis, the taxpayer argues that, to the extent that the installments are paid and the debt is progressively reduced, there should be a proportional reduction in the assets subjected to attachment, thus maintaining a balance between the remaining debt and the respective collateral. The taxpayer also argues that the release of collateral only after payment of the last installment violates the right to property.