The Superior Court of Justice (STJ) withdrew from judging a case that had been recognized under the general repercussion system (Theme 987) on the possibility of carrying out coercive acts, in the context of tax enforcement, against companies undergoing judicial recovery.

The decision to discontinue a case that would be tried under the repetitive appeals procedure was made based on the provisions of Law No. 14,112/2020, the New Bankruptcy Law (NLF), which came into force in January of this year. The new legislation determines that ongoing tax executions against companies undergoing judicial recovery will not be suspended. This means that the approval of the plan does not prevent the adoption of coercive acts against these companies.

The regulation also delegates to the judicial recovery court the power to determine the replacement of acts of constraint, which affect capital assets essential to the maintenance of business activity, until the end of the judicial recovery, provided that through judicial cooperation with the tax enforcement court.

Given this new context presented by the NLF, the 1st Section of the STJ decided to cancel Theme 987, given the impossibility of advancing on the matter without, based on the new law, the competent court evaluating the constrictive acts carried out.

Justice Mauro Campbell, rapporteur of REsp 1,694,261, was the one who proposed canceling the issue, and the proposal was unanimously accepted. According to the justice, since the special appeal was filed in the tax execution proceedings without the prior ruling of the judicial recovery court, as required by the new law, the ruling of the 1st Section on the matter is not appropriate.

The decision raises a red alert for companies undergoing judicial recovery, since the STJ's disqualification of the matter allows the National Treasury to continue tax executions against companies undergoing recovery, with the full approval of the court.