THE TAX LIABILITY OF PARTNERS IN THE DISSOLUTION OF THE COMPANY AND THE REDIRECTION OF THE TAX EXECUTION
This work aims to analyze the tax liability and the redirection of the tax execution to the partners, directors, managers or representatives in the dissolution of the company, whether this dissolution is regular or irregular. For such, it is important to review the institutes of credit assessment and tax liability for unlawful act, under the prism of the administrative tax process, which is the framework of the legitimacy of the state action.
1 - INTRODUCTION
The purpose of this study is to analyze the tax liability of managing partners of corporate companies, especially when determining the hypothesis of unlawful conduct of partners, as provided for in article 135, III, of the National Tax Code - CTN.
In this context, it is essential to understand the constitution of the tax credit through the assessment and, mainly, the opportune moment to point out the tax liability of third parties, as is the case of partners, managers and other representatives of the company.
It is worth stressing that the issue - redirection of the tax execution to third parties - has been widely debated in the Judiciary, and the development of this work is relevant to clarify the legal hypotheses.
Firstly, the work will expose on the tax liability for unlawful act, whose clarification passes through the proof of the partners or managers to achieve the obligation to pay the tax with private assets.
It is also important to outline the irregular dissolution, hypothesis of illegality, with distinct nuances that were built by the jurisprudence. Such hypothesis will be a fundamental point to distinguish for the hypothesis of regular dissolution.
Since the form of determination, as the legal provision, will be aspects to be discussed, to provide through comparative analysis of the institutes, as well as research jurisprudence, answers to the problem formulated.
2 - TAX ASSESSMENT AND ASSESSMENT OF TAX LIABILITY
Initially, it is important to clarify on the assessment of the tax credit provided for in article 142 of the CTN, an institute that allows the identification of the tax debtors.
It should be noted that it is at the time of the assessment of the tax credit that the taxpayer and the person responsible for the tax are identified; the latter is the object of the work that will be discussed hereafter.
Regarding the taxpayer, it is worth emphasizing that it has a direct relation with the taxable event of the tax, pursuant to article 121, I of the CTN. That is, as it performs the activity provided by law that gives rise to the tax liability, it is framed as a taxpayer of the tax.
Therefore, when formalizing the tax credit by the assessment, as Sabbag (2011, p. 671) stipulates, there will be the identification of the taxpayer of the tax, as well as the identification of another person designated by law, which in the case object of the work, will be the person with unlawful conduct in the management of the business company.
With regard to the identification of the taxpayer identified as the person liable for tax, it is important to mention article 121, sole paragraph, II, of the CTN, which provides as follows: "II - liable party, when, without having the status of taxpayer, his obligation arises from an express provision of law".
In the proposed case, the legal hypothesis under analysis is the unlawful conduct set forth in article 135, III of the CTN.
3 - TAX LIABILITY FOR LAWFUL ACT AND UNLAWFUL ACT
Article 134 of the CTN establishes that in the impossibility of enforcing the performance of the principal obligation by the taxpayer, the tax debtor is jointly and severally liable.
Now, the liability dealt with in the article in question is in the case of omission by the person responsible for the tax, who for some reason failed to comply with the taxpayer's tax obligation; in this case, culpable conduct is present.
On the other hand, article 135 of the CTN provides for the personal liability of the partners, and the doctrine and case law understand that only the partner who manages the company to which he belongs with management powers and, in the exercise of his prerogatives, has committed an excess of powers or violated the law will be reached, the willful misconduct being fundamental for the personal liability to be characterized.
According to Sabbag (2011, p. 737), "the taxpayer here is the victim of abusive, illegal or unauthorized acts committed by those who represent him, which is why one seeks to hold such representatives personally liable".
Accordingly, the excess of powers occurs when the partner acts on its own behalf and exceeds the powers delegated to it. The violation of law, articles of association or bylaws occurs when the third party violates the law, or the articles of association, or the bylaws, being fundamental a wilful conduct when committing such violation, which cannot be presumed. (SABBAG, 2011, p. 738)
It is also important to note that, according to the understanding of the Superior Court of Justice - STJ, consolidated in Precedent No. 430, the default on the tax liability of the business company does not, by itself, generate joint and several liability of the managing partner.
Therefore, it is consolidated the understanding that liability for tort can never occur by mere default of the obligation to pay the tax, being essential the characterization and proof by the tax administrative proceeding. This is the premise built in this topic, which will be developed in due course to support the intended conclusions.
Finally, the tax liability produces effects that reach third parties, as will be demonstrated below.
4 - OF THE INDISPENSABLE ASCERTAINMENT OF THE ILLICIT ACT BY THE ADMINISTRATIVE TAX PROCEDURE
The liability for tort, provided for in article 135, III of the CTN, allows the Public Treasury to hold third parties, partners, managers and others liable for the payment of the tax credit.
In other words, partners, managers and others are now liable with their private assets for a tax debt that previously originated with the taxpayer (company).
Thus, it is necessary to clarify the institute that legitimizes the liability of third parties, and, as already pointed out, it is not possible to presume a mere default in the payment of a tax.
In this regard, in order to find an answer on the institute, it is appropriate to point out again the jurisprudential construction consolidated by the STJ, which has established the understanding that the Overdue Tax Liability Certificate - CDA, an extrajudicial enforcement instrument, presents a presumption of legality and, in case the partners' names are included in said instrument, the partners must produce evidence on the absence of liability. This is the provision of theme 103 of the repetitive appeals of the STJ, see:
"If the execution was filed only against the legal entity, but the name of the partner is included in the CDA, the burden of proving that none of the circumstances provided for in article 135 of the CTN was characterized, that is, that there was no practice of acts 'with excess of powers or violation of the law, articles of association or bylaws', is incumbent on him.
Therefore, following the jurisprudence understanding, the write-off is not a discretionary act, and the CDA must accurately portray what was verified as illicit in the responsible party's conduct. Therefore, the assessment of such liability will occur at the time of the assessment of the tax credit and will necessarily be through the administrative tax proceeding - PAT.
From this standpoint, the partner must be summoned to participate in the PAT adversary proceeding and, only after his liability is properly ascertained, if this is the case, will he be held liable for the tax credit of the company to which he belongs.
This is the understanding of the 1st Panel of the Superior Court of Justice, involving the personal liability of the partners of a legal entity in tax enforcement proceedings, in Special Appeal No. 1.604.672/ES:
TAXATION. TAX FORECLOSURE. CERTIFICATE OF ENFORCEABLE DEBT. FORMER MANAGING PARTNER OF BANKRUPT CORPORATION. QUALIFICATION AS CO-RESPONSIBLE. ABSENCE. IRRELEVANCE. FULLY BINDING REGISTRATION ACT. PRESUMPTION OF LEGITIMACY AND VERACITY.
1. The name of the partner contained in the Overdue Tax Liability Certificate does not need to be accompanied by the qualification of co-responsible/codebtor to allow its inclusion in the defendant in the tax enforcement proceeding, since, in addition to this condition to be checked in the previous administrative proceeding, the tax authority, under penalty of liability, does not have discretion as to the elements to be inserted in the registration act, since the respective activity is fully binding.
2. As consolidated by the First Section, in the judgment of Special Appeal 1.104.900/ES, "if the execution was filed only against the legal entity, but the partner's name is included in the CDA, the burden of proving that none of the circumstances provided for in article 135 of the CTN was characterized, that is, that there was no performance of acts 'with excess of powers or violation of the law, articles of association or bylaws', is incumbent on the partner".
The "taxpayer, accused or interested party" (art. 203 of the CTN) must always have within their reach the administrative proceeding corresponding to the entry in the past-due liability roster, as provided for in art. 41 of Law no. 6.830/1980, which affords them the opportunity to exercise their right to adversary proceedings and to verify the regularity of compliance with the validity requirements of the Past-due Debt Certificate.
4. Situation in which, due to the fact that the name of the former director of a joint stock company (VASP S.A.) appears in the Overdue Tax Liability Certificate, even without the qualification of co-responsible, the onus of removing the presumption of legitimacy and veracity of such document is on him.
5. Special appeal granted.
(REsp 1604672/ES, Rel. Minister GURGEL DE FARIA, FIRST TURMA, judged on 21/09/2017, DJe 11/10/2017) (BRAZIL, 2017)
Furthermore, the jurisprudence is unanimous that the lack of participation of the partner in the PAT makes its inclusion in the CDA unfeasible. This is the understanding of the Federal Regional Court of the 1st Region:
CIVIL PROCEDURE AND TAX. OBJECTIONS TO TAX EXECUTION. PRECEDING FIVE-YEAR STATUTE OF LIMITATIONS. NULLITY OF THE CDA IN RELATION TO THE CO-RESPONSIBLE PARTY. LACK OF NOTICE OF ASSESSMENT.
[...]
3. The lack of summoning of the appellant/responsible party in the administrative proceeding jeopardizes the assessment of the tax credit, configuring the extrajudicial enforcement instrument null and void in relation to him. This matter refers to the specific conditions of tax enforcement.
4. Although the executed legal entity Função Engenharia Ltda has been notified in the administrative tax proceeding, this does not exclude the obligation to give opportunity to the other co-obligors for their previous defenses, including to legitimize the inclusion of their names in the CDA, reinforcing the presumption of certainty and liquidity of the instrument. [...] (AC 0003364-68.2013.4.01.4200 / RR, Reporting Federal Judge NOVÉLY VILANOVA, EIGHTH PANEL, e-DJF1 of 24/03/2017). (BRAZIL, 2017)
The aforementioned decision points to the indispensability of the PAT, since it is the institute that legitimizes the state assessment in the application of legality, which, in this case, goes through the verification sieve of article 135, III of the CTN.
In the debate proposed, since it is certain that the PAT is indispensable, it is important to compare it with the hypothesis provided for in article 191 of the CTN, which states: "the extinguishment of the bankrupt party's obligations requires proof of payment of all taxes".
However, the impasse consists, since the partner's liability, as already seen, does not derive from the satisfaction of the tax credit, but from the ascertainment, which is essential, of the PAT.
Along these lines, in the event of regular dissolution of the legal entity, in the case of bankruptcy, even if there are unpaid tax debts, under no circumstances does it authorize personal liability by assumption (without PAT), according to the understanding established by the Superior Court of Justice. See excerpt from the judgment:
INTERLOCUTORY APPEAL IN THE INTERLOCUTORY APPEAL IN SPECIAL APPEAL. TAX EXECUTION. VIOLATION OF ART. 535 OF THE CPC NOT CONFIGURED. FGTS. NON-TAX DEBT. REDIRECTION REQUEST BASED ON CIVIL LEGISLATION. POSSIBILITY. RESP 1.371.128/RS, REL. MIN. MAURO CAMPBELL MARQUES, DJE 17.9.2014, JUDGED UNDER THE RITE OF REPETITIVE APPEALS. REGULAR BANKRUPTCY PROCEEDING. IRREGULAR DISSOLUTION OF THE COMPANY NOT VERIFIED. IT IS NOT APPROPRIATE TO REDIRECT THE EXECUTION WHEN THERE WAS NO PROOF OF EXCESSIVE MANDATE OR VIOLATION OF THE LAW, THE ARTICLES OF ASSOCIATION OR THE BYLAWS. JURISPRUDENCE OF STJ. INTERLOCUTORY APPEAL WHICH IS DENIED.
[...]
Closure of the company being enforced, through a regular bankruptcy proceeding duly registered with the commercial registry, does not legitimize redirection of the tax enforcement action, if fraudulent conduct, acts in excess of power, violations of the law, articles of association or bylaws are not evidenced.Precedents: REsp. 1.470.840/SP, Reporting Justice HUMBERTO MARTINS, DJe 12.12.2014; AgRg no AREsp. 435.125/SP, Reporting Justice SÉRGIO KUKINA, DJe 19.3.2014.
[...]
(AgRg in AREsp 524.935/SP, Rel. Minister NAPOLEÃO NUNES MAIA FILHO, FIRST TURMA, judged on 05/17/2016, DJe 27/05/2016) (BRASIL, 2016)
The case law of the Courts is well-established in the sense that self-bankruptcy and default are not facts that authorize the redirection of the tax debt to the partners of the bankrupt legal entity.
And goes further, he understands that if the company is extinguished, the execution will follow the same fate, due to the supervening loss of object in the cases in which it is not possible to redirect the Tax Enforcement Action. As already stated, when no fraudulent practice or violation of the law is verified, the execution cannot be redirected.
Having said this, it is illegal to redirect the tax enforcement proceeding, usually carried out by the Tax Authorities, against partners of business companies even in cases of regular dissolution of the company. After all, the indispensable ascertainment of tax liability in the PAT remains unscathed; if this does not occur, the redirection is illegal.
And, lastly, with regard to irregular dissolution, although the STJ understanding is that it allows the redirection to the partners or managers, it is necessary that the legal basis be clarified, in this case article 135, III, of the CTN.
And as explained, the certainty that the ascertainment of tax liability under article 135, III of the CTN necessarily passes through the opening of the tax administrative proceeding, presumption being prohibited.
5 - FINAL CONSIDERATIONS
This article sought to provide a proper understanding of the tax liability referred to in Article 135, item III of the National Tax Code.
At this point, we conclude that such liability is exclusive of the partners, directors, managers or representatives of the private-law legal entity for tax credits arising from acts performed with abuse of power and in violation of the law, articles of association or bylaws.
However, in order to redirect the tax execution against the partners with management powers of the legal entity, it is necessary that the responsibility of such partners be ascertained in a regular tax administrative proceeding - PTA, which consists in a Constitutional guarantee to the ample defense and adversary proceeding.
Thus, the infraction must be ascertained by means of the due drafting of the infraction notice, with the subsequent notification to the tax debtor and, above all, with the purpose of ascertaining whether or not acts performed by managers or partners of business companies constitute an infraction of the law or excess of powers.
In the irregular dissolution of a company, the criticism to be made is that the ascertainment of tax liability occurs during the tax enforcement action, that is, subsequent to the assessment of the tax credit, which would be the (legal) proper moment for ascertainment.
By presuming that irregular dissolution generates tax liability, according to article 135, III of the CTN, there is a concomitant offense to article 142 of the CTN, which states that it is upon the assessment of the tax credit that the tax debtor is identified.
Moreover, the Constitutional guarantees of due process are violated, since the administrative tax proceedings are the only legitimate means of ascertaining the allegedly wilful acts of partners or managers, which may lead to tax liability.
On the other hand, in the regular dissolution of the legal entity, in the case of bankruptcy, the partner's liability does not arise from the satisfaction of the tax credit, but from the ascertainment, which is essential, of the PAT.
In this sense, the jurisprudence, as demonstrated in the work, is unanimous in affirming that even if there are unpaid tax debts, under no circumstances is personal liability authorized by presumption (without PAT). Therefore, the lack of participation of the partner in the PAT makes its inclusion in the CDA unfeasible.
As a matter of fact, the case law of the Courts is well-established in the sense that self-bankruptcy and default are not facts that authorize the redirection of the tax debt to the partners of the bankrupt legal entity.
Moreover, according to the understanding of the Superior Court of Justice, the entry in the debt collectible is not a discretionary act of the public administration, and the CDA must accurately reflect what was ascertained in the PAT.
However, what can be noticed in the tax daily routine is that the Public Treasury, when issuing the Tax Enforcement Debt Certificate - CDA, has been placing all partners with powers of management of the company in the passive pole of the Tax Enforcement Action, without due ascertainment of the tax liability through the PAT.
Now, the inclusion of partners in the CDA indiscriminately brings severe losses to the co-obligor. On one hand, it places on him the heavy burden of proving that he did not perform such acts. On the other, it reduces the possibility of defense, since the filing of a motion for stay of execution (Embargos à Execução Fiscal), which is the applicable procedural defense, obliges the applicant to prove the payment of the necessary guarantee of the amount of the tax execution in court.
Having said this, we conclude that the exorbitance on the part of the public authorities, henceforth the Public Treasury, does not deserve to prevail, since the control of the tax liability of a third party cannot be based solely on the will of the Tax Authorities.