In recent years, although the Superior Court of Justice (STJ) has established theories on the use of performance bonds or bank guarantee as security in tax litigation, taxpayers still face legal uncertainty regarding the effects of presenting judicial performance bonds and bank guarantee in tax foreclosures. The doubt arises especially regarding the possibility of a subsequent protest of the Outstanding Debt Certificate (CDA) and registration in the Informative Register of Unpaid Debts of the Federal Public Sector (Cadin).
In recent judgments, the 2nd Panel of the STJ[1] has ruled that guarantees of tax executions by bond, bank guarantee, and/or real estate, by itself, does not legally prevent the protest and/or inclusion in Cadin, "unless, for another reason - as in the case of interim judicial relief (article 151, IV and V, of the CTN) -, the tax credit has its enforceability suspended."
Also in relation to the case law, we can mention the sole-judge decision of Justice Gurgel de Faria, according to which "the provision of a performance bond, although it authorizes the issuance of a Debt Certificate with Effects of Clearance (CPD-EN), is not a cause for suspension of enforceability of the tax credit and, therefore, does not prevent the tax authorities from proceeding with the protest of the CDA and from registering the debtor's name in a register of defaulters."
It is thus seen that the 2nd Panel of the STJ, whose understanding has been applied in sole-judge decisions by some justices who are part of the 1st panel,[2] takes a position finding for the possibility of protesting the CDA, even in the event that the debt is guaranteed by a bond. The reasoning adopted is supported by the traditional case law that this type of guarantee does not suspend the enforceability of the tax debt.
In the opinion of the 2nd Panel of the Superior Court, suspension of the protest of an obligation described in an enforceable instrument and/or removal of the taxpayer from Cadin would be intrinsically linked to the express suspension of enforceability of the tax debt, provided for in article 151 of the National Tax Code (CTN). This measure would have the power to remove the situation of default for all purposes and allow the taxpayer to obtain tax clearance certificates, preventing its inclusion in Cadin and/or protest of the enforceable instrument.
This understanding impacts on taxpayers who intend to or already use performance bonds and/or bank guarantees for the purposes of guaranteeing tax foreclosures. In addition to bringing about serious implications for business activity, the position of the 2nd Panel of the STJ highlights the legal uncertainty that these taxpayers may face due to the divergent interpretations of the Judiciary on the effects of the attachment of these guarantees.
In practical terms, if the judge, when analyzing the guarantee offered, does not expressly mention suspension of the enforceability of the tax debt, the taxpayer may be surprised by the protest of the CDA or even by its registration in Cadin, even with the debt guaranteed by performance bond and/or bank guarantee.
If there is a suitable guarantee, the tax administration is fully protected in the event of success in the claim, which even hollows out - or should hollow out - its interest in adopting any other constrictive measures.
The protest of CDA and registration in registers of defaulters, therefore, in our view, represents another coercive means to collect the debt, which implies offense to the social function of the company, private property, good faith, and the principle of morality. They also offend the principles of reasonableness and proportionality, as well as the principle of least burdensomeness.
In addition, in view of the presentation of a suitable guarantee, there is no legal provision that the effects of suspension of enforceability of the tax debt are exclusive to the scenarios contained in the CTN. There is no prejudice to the tax authorities, since the debt is fully secured.
Despite these precedents, the discussion is far from being closed, since there are strong arguments that support the impossibility of protesting the CDA and registration in Cadin, based on credit guaranteed by performance bond and/or bank guarantee. In any case, it is important to follow the position of the Judiciary, especially the future decisions of the STJ on the subject.
[1] REsp 1.796.295/ES, REsp 1.775.749/SC, internal interlocutory appeal in the motion for clarification in REsp 2.001.275/PB.
[2] Motion for clarification in REsp 1,923,413, REsp 1930057; REsp 1.930.057; and AREsp 2.159.394.
