Although technically possible and correct, the position of the 3rd Panel of the Superior Court of Justice of to legitimize the Public Treasury to request bankruptcy. of the debtor when the tax enforcement If a failed attempt is made, it creates a new risk factor for the debtor, with the potential to bring on crises earlier.
The analysis comes from lawyers interviewed by the online magazine. Legal Consultant, in relation to the judgment of last Tuesday (February 3). It was the first time that a panel of the STJ adopted this position.
Until then, case law indicated that the Treasury could not request bankruptcy because the list of those entitled to do so is in article 97 of the law. Law 11.101/2005 This does not include public entities.
Minister Nancy Andrighi proposed a change of position based on the evolution of jurisprudence and the legal framework which, in her analysis, indicated the compatibility between tax enforcement and bankruptcy.
Law 14.230/2021 introduced changes to the bankruptcy insolvency system. Among the main changes is the inclusion of Article 7-A, which provides for the admission of public credit in bankruptcy proceedings.
The minister also highlighted that article 97, item IV, of Law 11.101/2005, which stipulates that "any creditor" can request the debtor's bankruptcy, makes no distinction between public and private entities.
Pressure on the debtor
To Victor Ferrari, According to a partner at the law firm Mazzucco & Mello Advogados, the ruling by the 3rd Panel of the Superior Court of Justice (STJ) allows bankruptcy to operate as a form of additional pressure, with immediate repercussions on the company's credit, reputation, and operational stability, a context that hinders management.
“The precedent could lead to increased costs for the debtor in tax litigation, anticipating typical crisis effects, even before any structured reorganization,” explains the lawyer. He also emphasizes that the debtor will need to adopt a more proactive stance in managing their tax liabilities.
“If this precedent becomes established, it tends to produce a significant imbalance in the system of Law 11.101/2005, creating tensions with already consolidated instruments of tax legislation and increasing the degree of risk in the management of tax liabilities. In practice, the tax issue ceases to be just a specific collection front and begins to occupy a central role in the strategy of preventing and responding to scenarios of cash flow deterioration.”
This imbalance stems from the fact that the Public Treasury is not an ordinary creditor. It has instruments and prerogatives specific to the tax regime that are not subject to the system of Law 11.101/2005, which must be considered by the Judiciary when evaluating bankruptcy petitions.
Aurelio Longo Guerzoni, a partner at Guerzoni Advogados, argues that the burden of proof lies with the tax authorities to demonstrate the exhaustion of all available collection mechanisms, in order to avoid the premature use of bankruptcy, including as an alternative to collection proceedings or as a means to hold partners liable.
“"Only after a rigorous asset investigation will it be possible to characterize a tax enforcement action as unsuccessful, which may open the way for bankruptcy, which tends to be used more often as a mechanism for satisfying tax debt," he states.
Anticipating crises
This precaution is important, according to Lígia Cardoso Valente, According to the law firm Finocchio & Ustra Advogados, companies then run the risk of losing their business, liquidating assets, undergoing a universal seizure of assets, and facing liability for their partners, since bankruptcy proceedings include instruments such as a revocation action and the establishment of a legal bankruptcy term.
“Although this increases the effectiveness of collection, it can also worsen business crises if used hastily, violating the legal principle of preserving the company. Furthermore, the debtor becomes exposed to a more intrusive asset verification environment, which can be premature if the legal channels that should precede this extreme measure are not followed.”
She reinforces the idea that the STJ's ruling implies the need for better management of tax liabilities. Along the same lines, Tattiana de Navarro, Oliveira Navarro says that tax enforcement should be seen as a real warning of escalating conflict, and not as a simple impasse in the process.
Quick reaction
The lawyer understands that the risk of bankruptcy increases the pressure for rapid settlement of liabilities, the offering of guarantees, and the organization of assets and accounting.
“"It also increases the cost of inertia and disorganization, because the debtor will need to react sooner, with a well-structured technical defense and, often, with a negotiation strategy, installment plan, transaction, or even evaluation of restructuring measures, precisely to prevent a scenario of frustrated execution from being converted into a bankruptcy petition that unbalances the company's business environment."”
According to Tattiana, however, the debtor can benefit from a limitation expressed in article 94, paragraph 2 of Law 11.101/2005. The rule states that "even if liquidated, credits that cannot be claimed in bankruptcy do not legitimize a bankruptcy petition.".
“"This requires that the claimed debt be effectively admitted in the bankruptcy proceedings and that the specific situation meets the legal requirements, so that the mechanism is used as a proper bankruptcy measure and not merely as a tool for debt collection pressure."”
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