By Tax Area

In a recent judgment, the 1st Section of the Superior Court of Justice (STJ), by majority of votes, decided that tax foreclosure may be redirected against the partner with administrative powers at the irregular dissolution of the legal entity.

Thus, the partner who held the management/administration role at the time of the irregular termination is responsible for tax debts, even if they were not in the company's staff or even, if part of the company, they did not hold any management power at the time of the taxable events.

It was understood that the termination of a company in an irregular manner also corresponds to an unlawful act, therefore, those with management powers shall be personally accountable for the acts performed, as provided for in Article 135, III, of the National Tax Code, which deals with the accountability of directors, managers, or representatives of legal entities governed by private law due to the practice of unlawful acts or in the excess of their powers in relation to the articles of incorporation/association.

It should be noted that a company is considered to be terminated irregularly when the partners do not update the registration data with the public bodies, as provided for in Articles 1.033 to 1.038, and 1.102 to 1.112 of the Civil Code or in the Bankruptcy Law (Law No. 11.101/2005). Furthermore, irregular dissolution is considered when the company changes its address without notice to the public administration (Precedent 435 of the STJ).

Finally, the Ministers of the STJ established the following thesis: “the redirection of tax foreclosure, when based on the irregular dissolution of the legal entity foreclosed or on the presumption of its occurrence, can be authorized against the partner or the non-partner third party with administrative powers on the date on which the irregular dissolution is configured or presumed, even if management powers had not been exercised upon the occurrence of the non-fulfilled taxable event of the tax, pursuant to Article 135, item III, of the CTN (Brazilian Tax Code)”.

We emphasize that the judgment was based on the Incident of Resolution of Repetitive Claims (IRDR) system, which means that all courts in Brazil shall adopt this understanding of the STJ in similar cases.