By a 3-2 majority, the First Panel decided that the third-party purchaser must be notified beforehand before recognizing fraud in tax enforcement proceedings in cases of assignment of tax credits. Therefore, it denied the appeal of the National Treasury and upheld the ruling of the Federal Regional Court of the 3rd Region (TRF3) in favor of the taxpayer.
The dissenting opinion presented by Minister Afrânio Vilela prevailed against the vote of the rapporteur, Minister Maria Thereza de Assis Moura. According to the minister, the 2015 Code of Civil Procedure (CPC) incorporated constitutional guarantees related to the right to a fair hearing and due process, making prior consultation with the third party affected by the measure mandatory.
The case involves a tax enforcement proceeding in which fraud was recognized due to the assignment of a credit after the tax debt had been registered as an active debt. The tax authorities argued that, in tax matters, the presumption of fraud is absolute, according to STJ's (Superior Court of Justice) Precedent 290 of repetitive appeals, making notification of the third-party purchaser unnecessary.
During her oral argument, the Federal Attorney Sara Mendes Carcará argued that tax legislation establishes a specific regime for fraud in tax enforcement proceedings. "In the case of tax credits, the circumstances concerning the third-party purchaser are irrelevant to determining whether or not there was fraud in the enforcement proceedings," she said.
Carcará requested the application of STJ's repetitive theme 290, which established the thesis that "the simple alienation or encumbrance of assets or income, or its commencement for an amount registered as an active debt by the taxpayer, without reserving means for settling the debt, generates an absolute presumption of fraud against creditors, even in the face of the good faith of the third-party purchaser and even if there is no record of seizure of the alienated asset.".
Lawyer Thiago Moura de Albuquerque, partner at the law firm Francavilla, Assis Fonseca, Soares Cabral, Albuquerque Advogados, cited article 792 of the CPC (Brazilian Code of Civil Procedure), which states that "before declaring fraud against creditors, the judge must notify the third-party purchaser." "The provision is clear that this is the procedural rule that must be respected," he argued.
Vilela accepted the argument. According to him, article 792, paragraph 4, of the CPC (Code of Civil Procedure) "ensures the third-party purchaser the right to influence the formation of judicial conviction beforehand" before the declaration of fraud against creditors. He was joined by Ministers Marco Aurélio Bellizze and Teodoro Silva Santos.
Bellizze stated that prior notification could allow for a reconciliation between the rights of the tax authorities and the bona fide third-party purchaser. Minister Teodoro Silva Santos, on the other hand, affirmed that the central point of the case was to uphold "due process of law" in the judicial process.
In her vote, the rapporteur argued that the legislator treated tax enforcement differently from civil enforcement, and that "the transfer of assets carried out after the registration of the tax debt as an active debt constitutes fraud against enforcement, and the good faith of the third-party purchaser is irrelevant." According to the minister, the absolute presumption provided for in Article 185 of the National Tax Code (CTN), dealing with its own regulations, eliminates the need for prior notification of the third party. Minister Francisco Falcão concurred with the vote.
Colegiado : 2ª Turma
Processo : REsp 2170194/SP
Partes : Fazenda Nacional x Rosiel Caetano da Silva
Relatora : Maria Thereza de Assis Moura
Source: JOTA