After almost five years since the filing of the Repetitive Demand Resolution Incident (IRDR) No.0017610-97.2016.4.03.0000, the controversy over the The need to establish the legal personality disregard incident (IDPJ) in cases of tax liability was Special Body of the Federal Regional Court of the 3rd Region, in a session held on February 10th.
The vote that prevailed in the case was taken by the judgeWilson Zauhy, who concluded that the request was partially upheld to establish the thesis that “There is no place for the establishment of an incident of disregard for the legal personality in cases of redirection of tax enforcement provided that it is founded exclusively on tax liability in the cases of articles 132, 133, I and II, 134 of the CTN, the IDPJ being indispensable for proof of liability due to patrimonial confusion, irregular dissolution, formation of an economic group, abuse of rights, excess of powers or violation of the law, contract or bylaws (CTN, art. 135, items I, II and III), and for the inclusion of people who have a common interest in the situation that constitutes the triggering event of the main obligation, provided that they are not included in the CDA, all without prejudice to the regular progress of tax enforcement in view of the other co-obligors..
In his vote, the judge faced the controversy from three perspectives: the appropriateness of the IDPJ in terms of tax enforcement, the need for the prior establishment of the IDPJ in cases of tax liability and, also, the need to override the executive deed in relation to the others co-obliged, originally executed.
When dealing with the suitability of the IDPJ in terms of tax enforcement, Judge Wilson Zauhy considered that the establishment of such an incident would be possible under article 4, paragraph 2, of Law 6.830 / 80, which establishes the subjection of tax collections to liability rules provided for in the civil law, among which the disregard of the legal personality, highlighted in article 50 of the Civil Code, stands out.
In addition, the judge stressed that the changes introduced to the Civil Code by Law No. 13,874 / 19 would ratify the appropriateness of disregarding the legal personality in the context of tax collections. This is because the new wording given to article 50 of the Civil Code would have broadly defined the concepts of misuse of purpose and patrimonial confusion, which, in his understanding, would contemplate the hypotheses of excess and abuse of power, provided for in article 135 of the Code National Tax Authority (CTN).
Having established the premise that the establishment of the IDPJ in the context of tax enforcement would be appropriate, the vote faces the mandatory management of such procedure in cases of tax liability. For this, the judge considered it important to differentiate the legal responsibility provided for in articles 132, 133 and 134 of the CTN from that established in articles 124 and 135 of the same legal diploma.
According to the judge, the tax liability provided for in articles 132, 133 and 134 of the CTN depends on the occurrence of certain objective facts that do not require extensive probative delay. This is the case of the attribution of tax liability to the company that results from the merger, incorporation or transformation of another, to the one that acquired goodwill, commercial or industrial establishment and, still, to those who are subsidiary for third party debt, as is the case of partners who are responsible for the tax debts of the liquidated company.
A different situation would be that provided for in articles 124 and 135 of the CTN, which presuppose the presence of a certain volitional element on the part of the third party to whom the responsibility intends to be imputed. This is the case of the accountability of those who would have a common interest in the occurrence of the taxable event and, also, of the directors who practice acts with excessive powers.
Specifically for the cases provided for in articles 124 and 135 of the CTN, Judge Wilson Zauhy considered it necessary to establish the IDPJ, in order to prove, through a wide contradiction, the presence of the volitional element of the third party to whom the tax liability is to be attributed. . Such a presence cannot be presumed.
To corroborate this understanding, the judge mentioned the Major Theory of Disregard for Legal Personality, enshrined in the Civil Code and ratified by the Superior Court of Justice. According to this theory, the disregard of the legal personality presupposes full proof of the occurrence of misuse of purpose or patrimonial confusion, and it is not lawful for the interpreter to assume such facts.
In addition, as for the need to override the executive order while processing the IDPJ, the judge clarified that the best interpretation to be given to the stir is that the dispute will not be suspended, and should continue with respect to the other co-obligors.
Although the trial was finalized within the scope of the Federal Regional Court of the 3rd Region, the solution given to the controversy is not definitive. In view of the judgment given, it is appropriate to file a special appeal and an extraordinary appeal, which will be automatically indicated for processing under the same system of repetitive appeals. Thus, the thesis to be defined by the higher courts will be uniformly applicable throughout the national territory, under the terms of article 987 of the Civil Procedure Code.