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by Danilo Santana - Brazilian Writer
This article was translated by an automatic translation system, and was therefore not reviewed by people.
Redirecting the person tax execution to the shareholders
Over years of operation of a company's normal financial difficulties occurring or administrative failures that result in delay or not collect tax commitments.
The Public Finance, of course, has the right and duty to receive the credits made through Fiscal Performance, however, when it encounters any difficulty in finding penhoráveis property on behalf of the company, the
The Bureau of Justice, authorized by a court order to send quote and property seized by debtors, the case company and shareholders, just the personal attachment of the members.
If no appeal, the personal assets of members go to auction and are usually sold to small values.
The question is to what extent is the legal seizure of personal assets of shareholders to satisfy a tax debt of the company to which participate.
This was a very controversial subject in recent years, however, recently, that peace remains the responsibility of members there, but only in those cases where the partner has acted with excess power, offense against the law or statute, or in the event irregular dissolution of the company. The mere default of tax obligations not characterized legal violation.
Furthermore, the decisions of the Superior Court of Justice is clear that the redirect should be preceded by actual evidence, the Public Finance, which the partners have acted effectively in irregular or illegal.
Therefore, it is perfectly appropriate warrant the security certificate for negative flow rate in favor of the partner, even when the company is responsible for which part of taxes and their implementation has been judged.
And when there is the attachment of property of members, the embargo should be managed immediately, under penalty of convalidar to recover and not be able to exercise their shareholder rights to be excluded from execution.
The case has proceeded in the following direction:
SPECIAL APPEALS No. 788024 - MG (2005/0171099-2)
RAPPORTEUR: MINISTER FRANCISCO PEÇANHA MARTINS
Abstract:
CIVIL PROCEDURE AND Tax. TAX ENFORCEMENT. SOCIO-MANAGER. Redirected. INABILITY. THE VIOLATION OF ARTICLE 135 CTN not configured. FOREGOING.
- The redirection of tax execution to the member-manager of the company is only appropriate when evidence that he acted with excess power, offense against the law or statute, or in case of irregular dissolution of the company. The mere default of tax obligations not characterized legal violation.
- Action particular known and provided.
JUDGMENT
Viewed, reported and discussed these documents, the Ministers agreed on the second class of the Superior Court, in accordance of the votes and phonographic notes the following unanimously to uphold the appeal. Voted with the Rapporteur Mr. João Otávio de Noronha Ministers and Castro Meira. Absent, rightly, the Minister Eliana Calmon. Chaired the trial the Exmo. Minister João Otávio de Noronha.
Brasília (DF), November 17, 2005 (Date of Trial)
MINISTER FRANCISCO PEÇANHA MARTINS
Rapporteur
SPECIAL APPEALS No. 788024 - MG (2005/0171099-2)
REPORT
Sir. SR. MINISTER FRANCISCO PEÇANHA MARTINS (Rapporteur): It is shown by special use ANÍBAL BATISTA COELHO based on the letters "a" and "c" against the permissive constitutional ruling by the Court of the State of Minas Gerais, which, by majority, dismissed the appeal brought by the appellant herein, in case of mandamental action brought for the purpose of obtaining certificate of negative output.
The ruling was so menus (fls. 119):
"Warrant Security - Request for certificate of mailing of negative flow on behalf of the partner - Obligation of the corporation - Partner regularly quoted on tax enforcement - Failure in the collection of tax - Liability - Security denied - Appeal improve - Sentence maintained. The partner of company shares of limited liability, having been regularly cited to integrate the implementation of the tax liability pole, will also be liable to tax, which legitimizes the denial to provide CND.
In particular appeal, the applicant submits either negative duration of the art. 135 of CTN and interpretative disagreement, state trading companies that have legal personality and distinct from its members, so only the heritage of them answered the debts that they will take. To ensure the redirection of debt to the member-manager of the company must have proof of actual performance with fault or fraud on the company's board, was not the case. Ensures that the certificate of negative output was denied by a simple breach of company tax.
Reasons to counter-fls. 193/201.
The appeal was admitted to the Court a quo, increasing the file to this eg. Court, where I have come to conclusions.
Dispense the pronouncement of the Federal Public Ministry, under Rules.
This is the report.
VOTE
Sir. SR. MINISTER FRANCISCO PEÇANHA MARTINS (Rapporteur): It is shown by special use ANIBAL BATISTA COELHO against ruling that established that the shareholder-manager responsible for the tax debts of the company, in view of the non-collection of taxes.
In particular appeal the appellant submits that the mere non-collection of taxes is not able to redirect the violation done to the shareholder-manager of the company performed.
The applicant now, aiming to convey the property of their personal assets, asked the State Department of Finance of Minas Gerais Negative Certificate of Delivery, which was denied the argument that part of company tax debts.
There reason the applicant.
No vote of the ruling driver was well set (121):
"There is no illegality in rejecting the negative issue of Certificate of Debt in favor of the petitioner, as it actually is in debt with the State Farm, by proving in embargo enforcement, the requirements are not present opportunity of accountability.
In pitchfork, the refusal of the Negative Debit Certificate in favor of petitioner would be justifiable, if only the company was in debt with the tax authorities, as the collection of tax has not it violates the law, beyond the presumption of use of the person law, for purposes contrary to law, which by itself has characterized the responsibility of the member.
Therefore, those engaged in the administration of a company are responsible for enforcing the obligations of this, including the payment of taxes, and leaving them to collect time and way, violate the tax law, and in these circumstances, the interpretation Article 135 of the CTN, the partners responsible for output tax of the company. "
This Court established the understanding that the shareholders-managers are responsible for replacement, the credits for tax obligations arising from the act or practice in fact permeated of excess power or violation of law, social contract or statute, pursuant to art . 135, III, of CTN, however, dependent on evidence. Therefore, the mere default of tax obligations not characterized legal violation.
Accordingly:
"Tax. Embargo of divergence. SOCIO-LIABILITY OF MANAGER. Default.
1. The absence of collection of the tax does not lead, necessarily, the joint liability of the partner-manager, there being evidence that it acted in excess of authority or violation of the law, the social contract or the status of the company.
2. Embargoes of divergence rejected. "(ERESP 374.139/RS, First Section, Min Rel CASTRO MEIRA, DJ 28.02.2005).
"Tax. Embargo of divergence. TAX ENFORCEMENT. SOCIO-LIABILITY OF MANAGER. LIMITS. ART. 135, III, of CTN. FOREGOING.
1. The assets of the partner of a legal person should not respond in character sympathetic, for tax debts incurred by the company. The tax liability imposed by socio-manager, trustee, director or equivalent only when there is marked irregular dissolution of the company or is proved wrongdoing committed by the leader.
2. In any kind of commercial society is the social heritage that always and fully answered by the company debts. The directors not personally liable for obligations incurred on behalf of society, but respond to this and to third parties, jointly and unreservedly, the excess of mandate and the acts committed in violation of the statute or the law (art. 158, I and II of Law No. 6404/76).
3. According to our legal, tax, the partners (directors, managers or representatives of legal person) are responsible for replacement, the claims related to tax obligations resulting from the act or practice in fact permeated of excess power or violation of law, social contract or statute, pursuant to art. 135, III, of CTN.
4. The simple default does not characterize legal violation. Absence of evidence that it acted with an excess of power or violation of social contract or statute, no mention was tax liability of the former partner as such or as a legal violation. No tax liability of ex-partner.
5. Precedents of this Superior Court.
6. Embargoes of divergence rejected. "(ERESP 260.107/RS, First Section, Min Rel Jose Delgado, DJ 19.04.2004).
Considering the above, know the appeal and give him dismissed.
So there will always be legal remedy. The most important factor is the immediate reaction of the partner improperly charged. The judgments of the courts and facilitate this work doctrine is increasingly clear and illustrative.
The ideal, but it is a preventive action, the detailed examination of all facts and management that may involve the lifting of the tax liability. The late action can not achieve the magnitude of beneficial effects, in most cases the members could enjoy.
REDIRECTED FOR TAX FOR PARTNERS
Summary:
With globalization, the decline in value of our currency against the dollar and a tax admittedly high, the Brazilian business was already finding difficulty in competing in national and international market, now comes another concern: the so-called forward for tax enforcement shareholders of the company too.
FAQ:
1. What is and how it works, the so-called redirection of tax enforcement against delinquent members of the company?
Answer:
Redirection is a routine procedure of the Public Prosecutors of Finance that, in the fiscal performance brought against the company, not when the goods seized are located, require the court that the execution is redirected to the shareholders of the company as on the social contract.
2. Cases where the Public can charge directly from the shareholders of any company's tax debts?
Answer:
Members may respond, by substitution, the credits from tax obligations arising from the act or practice in fact permeated of excess power or violation of law, social contract or statute, pursuant to art. 135, III, of CTN (National Tax Code).
In summary, where the partner has acted with negligence or willful misconduct in the administration of the company.
3. The possibility of redirecting the tax enforcement affects all members or only members managers?
Answer:
The tax can only achieve redirect the partner manager, and even then when there is proof that this partner fits the conditions of the Act
Ie, where there is intent or negligence of a partner, or by any act or any omission.
And most important, is that the Public has to prove that the partner has acted in breach with the standard. It is not correct, as usually occurs, the prosecutor simply requires the redirection of execution against the partner without proof in case it falls under the conditions that the law provides.
4. In that case the tax debt can lead to criminal proceedings?
Answer:
The criminal responsibility is grave.
Actually, technically, the entrepreneur could only be criminally liable when their management cause a harmful result to the State and when this administration is eivada of intent or fault.
For example the owner of the employee discounts to the Income Tax, or the contribution of Social Security and not to collect, in this case, it is appropriating a value that belongs to the State.
But the chances are many in the business may be criminally liable. In many cases the alleged crimes are charged by the company's direction, not always a partner, can also be an employee, and sometimes by several members or administrators at the same time.
So, it is difficult to identify in the case, who, within the company, labor intentionally aiming to evade taxes while causing an injury to the tax authorities and an undue profit for the company.
To empower a trustee is necessary to define who has the power of performance with capacity to take strategic decisions on tax. Outside this, the courts have rejected the many criminal complaints offered by prosecutors.
Criminal law - Law No. 8137/90 --
Article 1 It is crime against the order removing or reducing tax levy, or social contribution and any enhancement by the following conduct:
I - omit information or provide false statement to the farm;
III - fake or change invoice, invoice, duplicate, sales receipt or other document relating to the taxable transaction;
V - deny or fail to provide, when required, invoice or equivalent document for the sale of goods or services, effectively implemented, or provide it at odds with the law.
Penalty - imprisonment from two (2) to 5 (five) years and fine.
Article 2 It is the same kind of crime:
I - making false statement or omitted statement of income, assets or facts, or employ other fraud to avoid it, wholly or partially from payment of tribute;
II - no longer gather in the legal deadline, amount of tax or social contribution, deducted or charged, as a taxpayer and that the obligation to collect the public coffers;
Etc..
Penalty - detention of six (6) months to two (2) years and fine.
5. As the business must make to avoid the risk of losing your personal property and not be criminally liable?
The entrepreneur should look familiar, even superficially, the rules governing the personal liability of shareholders in relations taxes, and more, their reflections in the civil and criminal.
When the entrepreneur begin to understand the mechanics of the process of implementing legal and criminal responsibility, no doubt, may revise its strategy and better structure to deal with tax issues.
The entrepreneur needs to improve your knowledge and monitor the trends of our courts when examining issues of corporate interest. Small preventive measures could significantly change the numbers of the tax liabilities of companies and reduce the levels of concern for entrepreneurs.
Incidentally, the Inepro, an organization dedicated to training, providing a longer course of Topic Business Law, with duration of 06 months, just to offer specific knowledge of interest to the entrepreneur.
6. The course will be the presence or distance?
The course will be presential, taught by university professors, lawyers, judges and other experts, and after the measurement of proficiency, will be given their certificates, issued by Inepro - National Institute of Vocational Education.
However, for the information of the body, until the next year the course is now also in many cities in several states, so really the democratization of legal expertise with a focus on business activity.
The course also offers a certificate, with hours of 300 hours, which, although not effective scholars, enrich the curriculum for entrepreneurs, executives and candidates for jobs in the areas of business decision.
This article was translated by an automatic translation system, and was therefore not reviewed by people.