This article discusses the possibility that taxpayers may obtain from the Public Treasury reimbursement of expenses incurred in contracting for a bank guarantee or insurance-guarantee offered in guarantee in tax executions as a requirement for filing a motion to stay the execution.

Advance on and reimbursement of procedural expenses

Disbursement of procedural expenses is handled by our legal system from two distinct chronological perspectives: advance (a priori, such that the act may be carried out) and reimbursement (a posteriori, with the outcome of the proceeding, according to the logic of loss of suit).

As a general rule, the parties must advance payment of expenses related to acts performed or required in the proceeding (article 82 of the Code of Civil Procedure). Thus, the plaintiff who files a suit for collection and, in this context, requests the production of expert evidence, must deposit the expert’s fees. Under this same logic, expenses with contracting for a certain guarantee, because it is a requirement for filing a motion to stay execution, must be initially assumed by the taxpayer.

At the end of the proceeding, as guidelines for reimbursement of procedural expenses, two principles are identified: that of loss of suit and that of causality.

From the rulemaking point of view, we see that the Code of Civil Procedure more explicitly addresses the reference point of loss of suit, according to which the unsuccessful party must compensate the winner for procedural expenses advanced (article 82, Paragraph 2). According to this same principle, in the event of reciprocal loss of suit (each party being partly winner and loser), the procedural expenses shall be distributed proportionally (article 86).

Specifically regarding the execution process, the content of article 776 of the Code of Civil Procedure, according to which "the judgment creditor shall reimburse the judgment debtor for the damages suffered by it when the judgment, which has become final and unappealable, declares that the obligation that gave rise to the execution was wholly or partially invalid."

Also in the Law on Tax Enforcement (Law No. 6.830/80), guidelines may be found in this regard, specifically relating to the responsibility of the Public Treasury for reimbursement of procedural expenses if it is unsuccessful in the end (article 39, sole paragraph).

Another principle is that of causality. Although there is an important zone of confluence between the principles of loss of suit and causality (in many cases, the losing party is also the party that gave rise to the demand and the costs involved), they should not be confused with each other.

The logic of causality helps to explain the duty to reimburse procedural costs (or payment of fees) on the part of the party who, although not exactly losing from the perspective of substantive law, has given cause to the procedural legal relationship and the resulting costs.

A paradigmatic situation relating to the subject of taxes should help one to perceive the distinction between loss of suit and causality. This paradigm is a tax execution to collect on a tax debt that was created as a result of an error in the filling out the Declaration of Federal Tax Debts and Credits (DCTF) by the taxpayer itself. Once the error has been found, the tax execution will have to be extinguished, with a recognition that the collection is undue, that is, with a "loss in the suit" by the Public Treasury.

However, the case law of the Superior Court of Justice (STJ), including in the context of a Special Appeal Representative of the Controversy, established that in such cases, in order to determine liability for the costs of the proceeding, it is important to investigate who caused the undue collection. If the taxpayer has filed for a rectification of the DCTF before the tax execution is filed, but the Tax Authorities, due to omission or inefficiency, failed to process it, the Tax Authorities are charged with improper filing of suit; if the evidence demonstrates that the error in filling out the DCTF submitted by the taxpayer is discovered after the filing of the tax execution, the taxpayer shall be considered the cause of the undue filing of suit and, therefore, liability for the costs of the proceeding (Special Appeal REsp 1111002/SP).

The notion of causality is the result of a construction created by case law, which ends up tempering the principle of loss of suit to the particularities of the individual case. That notwithstanding, the current Code of Civil Procedure innovates in relation to the subject by bringing in, timidly but expressly, a reference to this principle in the event of extinction of the suit due to supervening mootness (article 85, paragraph 10, of the Code of Civil Procedure). In this case, the costs of the proceeding will be borne by the party that gave rise to the filing of the suit, regardless of whether it is a plaintiff or a defendant, winner or loser from the point of view of the underlying substantive legal relationship.

May the costs of the guarantee be treated as procedural expenses for reimbursement purposes?

The technique used by the legislator in drafting article 84 of the Code of Civil Procedure is not the best, because it raises doubts, at least at a first glance at the matter, on the exemplary or exhaustive nature of the list provided therein (only procedural costs, travel expenses, and remuneration of the expert witness and per diem of witnesses are listed).

However, a systematic interpretation ends up showing that the term "procedural expenses" has a much broader scope. It is sufficient to note that Section III of Chapter II, Title I, of Book III of the Code is entitled "Expenses, attorneys’ fees, and fines" and brings in, in its Article 95, detailed provisions on experts’ fees, which are not listed in the list of expenses of article 84.

Article 98 of the Code of Civil Procedure, which deals with the gratuitousness of the Judiciary, also provides indications that the list set forth in article 84 is merely exemplary. This is because, according to the aforementioned article 98, the gratuitousness of the Judiciary is directed to the party with "insufficient resources to pay costs, procedural expenses, and attorneys’ fees." In its first paragraph, the text brings in precisely a list of costs of the proceeding subject to gratuitousness, addressing, beside the fees, a new list of procedural expenses that covers items not contemplated in article 84, such as postage stamps, expenses with publication in the official press, expenses with DNA examination, remuneration of the interpreter or translator appointed, the deposits provided for by law for lodging appeals or bringing suits, among others.

This provision mentions, among procedural expenses, "the deposits provided for by law for lodging appeals, for bringing suits, and to carry out other procedural acts inherent in the exercise of a full defense and adversarial proceedings." A guarantee offered as a requirement for filing a stay on a tax execution is similar in nature, since it is a requirement, established by law, to enable one to carry out a procedural act inherent in a full defense and adversarial proceedings (article 16, paragraph 1, of Law No. 6,830/80).

Therefore, costs with the guarantee presented as a precondition for filing a stay of the tax execution are unequivocal procedural expenses, which can be repaid, at the end, by the Public Treasury, if it is due (broadly speaking, if it is decided in the light of the principles of loss of suit and causality, that the latter will be liable for reimbursing procedural expenses).