By Tax Area

The First Section of the Superior Court of Justice ("STJ"), under the rite of repetitive appeals (Subject Matter 1.012) - REsps 1.696.270/MG, 1.703.535/PA e 1.756.406/PA -, unanimously decided that the blocking of funds in SisbaJud shall be maintained when the taxpayer adheres to the tax debt installment program after the amounts are levied.

This is because the adhesion to an installment plan, according to Article 151, item VI, of the National Tax Code, corresponds to a hypothesis of suspension and not of extinction of the tax credit. In this context, the procedural legal relationship is duly maintained as it is, so that the tax foreclosure can be resumed, with the consequent enforcement of the guarantee, in case the taxpayer does not comply with the obligation to pay under the tax installment program.

In specific cases, taxpayers argued that the blocking should be released precisely because the installment plan suspends the enforceability of the tax credit. On the other hand, the Public Treasury argued that even if the enforceability is suspended, the tax credit is not extinguished, which is why the adhesion to the installment plan would not have the power to release the debt guarantees until duly paid.

It is also important to point out that the Ministers of the First Section of the STJ defined that, exceptionally, there is the possibility for the taxpayer to request the replacement of the online levy of execution by a bank guarantee or performance bond. To this end, it is necessary to prove the need for the application of the principle of least burden. That is, to prove that, among the means to carry out the enforcement, this modality proves to be onerous, given that it shall be enforced at the least burden to the debtor, ensuring the defense of its assets, as per Article 805, of the Code of Civil Procedure.

Therefore, in relation to the blocking of financial assets of the debtor via the SisbaJud system, in case of granting of the tax installments, the guideline established provides that the block shall (i) be lifted if granting occurs prior to the constriction, and (ii) be maintained if the granting takes place after the constriction, except for, in this case, the exceptional possibility of replacing the online levy of execution with a bank guarantee or performance bond, given the peculiarities of the specific case, upon irrefutable proof, by the debtor, of the need for the application of the principle of least burden.