By Tax Area

Minister Humberto Martins of the STJ, in a decision by the trial court, upheld the decision of the TJSP that determined the continuation of the Motion to Stay Execution, a means of defense in Tax Executions, even without the debt being fully guaranteed by money, as intended by the state tax authorities (AREsp No. 2.058.495/SP).

In this case, the taxpayer offered immovables as guarantee of the judgment and opposition of its Motion to Stay Execution. The Rapporteur Justice stated that the requirement for a full guarantee in money is illegal, abusive, and offensive to the adversary, in addition to submitting the taxpayer's right of defense to the convenience of the tax authorities.

Law No. 6.830/80 - Tax Foreclosure Act - establishes that the taxpayer, in order to guarantee the treasury credit and thus have the possibility of defending themselves against collection through the Tax Motion to Stay Execution, may use, in order of distribution, the following assets: Money, government bond, negotiable instruments listed on the stock exchange, precious stones and metals, real estate, ships and aircraft, vehicles, furniture, rights, and shares.

It happens that, in practice, the Treasury ends up accepting only cash or bank guarantee/performance bond, disregarding all other assets listed in the Tax Foreclosure Act, and this claim is endorsed by a large part of the Judiciary, in its most diverse instances. This practice violates the principle of least burden, which presupposes that the foreclosure takes place in the least economically impacting way for the debtor.

In this context, the recent decision of the STJ represents an important precedent favorable to taxpayers, as it demonstrates that not only money and bank guarantee/performance bond shall be accepted so that the taxpayer can defend themselves against a tax collection.