STJ decides that judicial recovery is null and void without tax commitments

The 3rd Panel of the Superior Court of Justice (STJ) decided that a company’s judicial recovery process may be suspended if the company does not prove its fiscal responsibility. The decision was announced by the institution this Monday (26).

According to the STJ, “the requirement to present certificates of tax regularity is valid as a condition for granting judicial recovery, especially after the entry into force of the new Law on judicial, extrajudicial and bankruptcy recovery (14,112/2020)”.

The res judicata concerns a business group whose recovery plan was approved by the general meeting of creditors. Subsequently, the court informed that, in order for the plan to be approved and judicial recovery to be granted, the group would have to submit within 30 days, under penalty of termination of the process, the negative tax debt certificates (CND), as required by law. , or prove the payment of any tax debts in installments. The São Paulo Court of Justice (TJSP) dismissed the defendants’ appeal.

To the STJ, the group of companies claimed that the tax credit is not subject to judicial recovery. He also argued that the lack of presentation of negative certificates cannot be an impediment to the granting of recovery, taking into account the principles of preserving the company and its social function.

Requirement of tax regularity

When presenting the vote, the rapporteur of the appeal, minister Marco Aurélio Bellizze, highlighted the new judicial recovery law that aims to improve recovery and bankruptcy processes, seeking to correct the inadequacies highlighted by doctrine and jurisprudence among the provisions of Law 11,101 of 2005 and practice.

According to Bellizze, this requirement, as a condition for granting recovery, was the way found by the law to balance the ends of the recovery process in all its economic and social dimensions, on the one hand, and the public interest held by the Public Treasury, on the other hand, other.

“Precisely because the granting of judicial recovery signals the desired resolution, as a whole, of its debts, the requirement for the company’s fiscal regularity constitutes a prerequisite for the court decision that declares it”, he stated.

The rapporteur also highlighted that, confirming the obligation to prove tax regularity as a condition for granting judicial recovery, the new wording of article 73, item V, of Law 11,101/2005 establishes that non-compliance with tax installments is a cause for transformation of the recovery in bankruptcy.

In denying the special appeal, Bellizze said that “it no longer appears possible, under the pretext of applying the principles of social function and the preservation of the company conveyed […] dispense with the presentation of negative tax debt certificates, expressly required […]especially after the implementation, by special law, of a legal feasible installment program, which proved to be indispensable to its effectiveness and compliance with such principles”.

*With information from STJ Notícias