04/12/2020

By Vitor Antony Ferrari and Ivan Kubala

In a note published in September of this year, we had communicated a preliminary decision issued by Minister Luiz Fux, at the time recently sworn in as President of the Supreme Court of Justice, requiring companies undergoing judicial recovery to present a Certificate of Tax Compliance for approval of the judicial recovery plan, contrary to the position previously held by the Superior Court of Justice.

The aforementioned preliminary decision issued in the proceedings of Complaint 43,169 MC/SP was widely criticized by the legal community, as it created enormous legal uncertainty for the various companies undergoing judicial recovery, as it would represent, if maintained, a real obstacle to the continuity of the activities of these companies.

However, yesterday, 12/3/2020, Minister Dias Toffoli, who assumed the reporting of the case in question, denied the Union's Complaint and, thus, rendered the preliminary decision issued by Minister Fux ineffective.

According to the Rapporteur Minister, the controversy concerns an infra-constitutional matter that does not challenge the Complaint proposed by the Union, and, in addition, he highlighted that the issue has already been considered by the Special Court of the Superior Court of Justice in REsp 1.187.404/MT, which concluded that the requirement for the CND was disproportionate to the guiding principles of the judicial recovery process, which represents a relevant precedent that deserves to be observed.

Therefore, the decision of the Distinguished Minister follows the same path as that already applied in specific cases and comforts the various companies that are undergoing judicial recovery or are about to file a request, particularly in light of the scenario of instability in the national economy, resulting from the effects caused by the COVID-19 pandemic.