On May 3, 2022, the Second Panel of the Superior Tribunal of Justice (STJ, the highest court for non-constitutional matters) granted Special Appeal no. 1.876.549/RS (“Special Appeal 1.876.549/RS”), filed by the National Revenue Prosecution Service (PGFN) against the decision of the Federal Court of Appeals for the 4th Region that had denied the redirection of a tax enforcement suit against the partners of a taxpayer classified as a micro-enterprise.
According to the appealed decision, the tax enforcement action filed against the company involved generating events that occurred during the effective period of Art. 9, §§ 3 and 5, of Complementary Law 123/2006 (now revoked), which established the joint and several liability of the partners and managers for the tax debts of the company in case of cancellation of its registrations while it has outstanding tax, social security or labor debts.
However, further according to the terms of the appealed decision, the responsibility of the partners should not be recognized since there was no proof of the existence of any of the hypotheses of Art. 135, numeral III, of the National Tax Code (CTN) (acts of managing partners in excess of powers or infraction of the law, articles of association or bylaws).
In the Special Appeal 1.876.549/RS, the PGFN sought reformation of the decision based on the following grounds:
(i) in carrying out the simplified cancellation of the company with the control bodies without proof of fiscal regularity, the partners became jointly and severally liable for the pending fiscal debts, pursuant to Art. 9, §§ 3 and 5 of Complementary Law 123/2006, according to the wording in force at the time;
(ii) the case does not involve irregular dissolution, so the interpretations of the doctrine from legal scholars and jurisprudence from the courts regarding Art. 135 of the CTN do not apply, therefore there was no need to verify the possible occurrence of illicit acts of the partners (acts with excess of powers or infraction of the law, articles of association or bylaws); and
(iii) the responsibility in the case should be deemed joint and several and was independent of any illicit act that could be equated with the situations of arts. 134, VII, and 135, III, of the CTN.
The Second Panel of the STJ granted Special Appeal 1.876.549/RS, recognizing the possibility of redirecting the enforcement action to the partners.
As interpreted by the Second Panel, the case in question could not be classified as irregular dissolution (art. 135 of the CTN), since there is a rule applicable to micro and small businesses allowing the possibility of regular dissolution even when there are outstanding tax, social security and/or labor debts. That provision had been included in the Brazilian legal system to facilitate the closure of such enterprises, not to permit default of tax obligations.
According to the leading opinion of the reporting justice assigned to the case, Justice Mauro Campbell Marques, both the original wording of art. 9 of Complementary Law 123/2006 and the wording given by Complementary Law 147/2014 must be interpreted in the sense that in regards to micro and small businesses, it is possible to hold the partners liable for default of tax obligations, based on art. 134, VII, of the CTN, when the company is extinguished.
However, the partners have the opportunity to demonstrate insufficiency of equity of the company upon liquidation, to escape from responsibility for the debts, in line with the jurisprudence from the STJ.
More information, as well as the full text of the decision rendered in Special Appeal 1.876.549/RS, can be found at the website of the STJ (www.stj.jus.br).
(1) Art. 135. Personal liability for debts corresponding to tax obligations in cases of acts committed in excess of powers or infraction of the law, articles of association or bylaws, applies to: I – the persons referred to in the preceding article; II – the attorneys-in-fact, agents and employees; III – the officers, managers or representatives of private companies.
(2) Art. 134. In cases when it is impossible to demand compliance with the principal obligation by the taxpayer, the following persons are jointly and severally liable with it for acts in which they intervene or omissions for which they are responsible: [...] VII – the partners, in the case of liquidation of a commercial partnership.
