In a unanimous judgment, the 1st Section of the Superior Court of Justice (STJ) granted the claim of the National Treasury to reaffirm its position regarding the possibility of maintaining the seizure of bank deposits via the BACENJUD system even though the taxpayer subsequently is enrolled on a program to pay such tax credit executed in installments.

The decision was taken in Repetitive Theme 1.012/STJ, and the following thesis was fixed as a general orientation:

The seizure of financial assets of the taxpayer in the BACENJUD system, in case of enrollment on a tax installment program, will be:

  • lifted if the concession to the program was granted prior to constriction; and
  • the seizure is maintained if the concession to the program occurs at a time post-constriction, subject, in this case, the exceptional possibility of replacing the amounts with bank bail letter or insurance guarantee, in view of the peculiarity of the specific case, by irrefutable proof of the need to apply the principle of least onerosity.

The rapporteur, Minister Mauro Campbell Marques, stressed that the jurisprudence of the STJ is firm in the sense that the enrollment on ta tax installment program will have effects to suspend the enforceability of the tax credit (Article 151, VI, ctn), without extinguishing the obligation.

Such circumstance, according to the Minister, legitimates the maintenance of the preexisting constriction incident on the debtor's assets, until the debt is fully paid. The possibility of the tax authority shall be ensured to resume tax enforcement in the event of non-compliance with the payments on the tax program.

Despite the position of the Supreme Court regarding the maintenance of seizure in case of adhering to the installment at a time after constriction, it is important to highlight that the taxpayer was assured the possibility of replacing the amounts pledged by guarantee insurance or bank bail letter, when it is shown that such amounts may compromise the regular activity of the taxpayer,  attention to the principle of lesser burden.

In such cases, it will be up to the taxpayer to effectively demonstrate the serious damage caused by constriction as a main ground to authorize its replacement.

It would be important for the Supreme Court to examine the progressive and proportional release of the value of the seizure, adjusting it to exclude the exact size of the portion of the debt already paid. This is because, maintaining the full blocking of the amounts until the end of the installment, there will be excess guarantee, causing serious damage to the taxpayer, especially in the chances of long-term installments programs.

Like what minister Napoleon Nunes Maia Filho defended[1] at the time of the STJ, "the execution must be processed in a calibrated manner, to achieve the purpose of the execution process, that is, the satisfaction of the credit, with the minimum sacrifice of the debtor (...) there is no reasonableness or common sense of equity in the orientation that accepts restrictions superior to the needs of satisfaction of the tax credit. The excess of guarantee is something that does not have the allowance of law and of the shallowest common sense of Justice".

Therefore, once the gradual payment of the installments was verified as a result of the conclusion of the installment payment agreement, the debtor should be assured of the proportional release of the constricted amounts, in order to maintain the equivalence between the tax debt and the guarantee of execution.

Because it is a judgment submitted to the rite of repetitive appeals, the understanding signed by the Supreme Court in the judgment of Repetitive Theme 1.012/STJ should be followed in cases dealing with an identical issue.


[1] REsp n. 1.266.318/RN, rapporteur Minister Napoleon Nunes Maia Filho, First Class, judged on 12/7/2017, DJe of 12/14/2017.