The São Paulo Court of Justice accepts third-party property as advance guarantee for tax debt.

The Court of Justice of São Paulo (TJ-SP) accepted a third party's property as advance collateral for a tax debt. The property belongs to a company with which the taxpayer has only commercial relations. Decisions like this are rare, according to lawyers. They add that the Judiciary rarely accepts this type of offer.

In general, advance guarantees are offered when a company loses an administrative lawsuit against a tax assessment and intends to challenge the collection in court. While the tax authorities do not file for tax enforcement, the taxpayer remains in a kind of "legal limbo" and, in order to obtain a tax clearance certificate and avoid being included in a defaulter's registry, needs to offer an asset as collateral.

The case involves an aluminum company that was charged R$ 320,000 in ICMS (a Brazilian state tax). In the first instance, the action for advance payment of security was dismissed without prejudice due to procedural issues. According to the judge, the 2015 Code of Civil Procedure (CPC) did not recognize autonomous precautionary actions.

The company then appealed with a request for preliminary injunction, which was granted by Judge José Maria Câmara Junior, of the 8th Chamber of Public Law. According to him, the security deposit represents an anticipation of the seizure, producing the same effects, as per the 2010 ruling of the Superior Court of Justice (STJ) through a repetitive appeal (REsp 1123669).

According to the decision (case no. 2007317-83.2021.8.26.0000), in these cases, such as in tax enforcement proceedings, the defendant may designate assets for seizure, observing the legal order provided for in article 835 of the CPC and in article 11 of the Tax Enforcement Law (no. 6,830 of 1980).

According to the regulations, seizure shall preferably follow this order: money, in cash or on deposit or invested in a financial institution; public debt securities with market quotation; securities and negotiable instruments with market quotation; vehicles; real estate; movable property in general; among others.

Initially, the company offered machinery from its fixed assets, valued at R$ 410,000. However, these were considered difficult to sell. Therefore, it began offering a property belonging to another company with which it has business relations, valued at R$ 630,000.

According to the lawyer representing the company, Jandir J. Dalle Lucca, partner at Dalle Lucca Law Firm, after the administrative process is concluded, "companies that intend to take the discussion of infraction notices to the Judiciary are at the mercy of the future filing of a tax enforcement action." Since this can take months, he adds, it is possible to obtain the right to offer the guarantee in advance through the courts.

According to Lucca, lower court judges in São Paulo have denied the request due to procedural issues. However, this has been reviewed by the São Paulo Court of Appeals (TJ-SP). Even so, he says, the appellate judges tend to accept only surety bonds or bank guarantees. "This situation is atypical, especially considering that the real estate does not belong to the company. Although the company that offered the guarantee held a shareholders' meeting, registered with the commercial registry, and complied with all legal requirements," he states.

The injunction obtained, according to lawyer Carlos Navarro, from the Galvão Villani Navarro law firm, is important because it is difficult to accept these assets. "The Judiciary is very resistant to holding third parties liable in these cases," he says. "At most, assets from another company within the same group or assets belonging to partners are accepted."

In a statement, the Attorney General's Office of the State of São Paulo informs that "the Public Treasury does not accept real estate as collateral for filed lawsuits, but in exceptional situations, depending on the specifics of the case, real estate may be accepted."

Source: Valor Econômico