Finances cannot block assets without a court decision, decides STF

The Public Treasury can guarantee, but not decree, the unavailability of the assets without judicial decision or the right to be heard. The understanding was signed by the majority of the Supreme Court, on Wednesday (9/12), declaring Law 13,606 / 2018, which allows the measure, unconstitutional.

In total, six trials questioned the constitutionality of article 25 of Law 13,606 / 2018, which incorporated article 20-B into the Cadin Law (Law 10,522 / 02). In it, it is foreseen that the Treasury may, in the event of non-payment of the credit registered in active debt, “register, even electronically, the certificate of active debt in the register of assets and rights subject to seizure or seizure, becoming those not available” .

Rapporteur Marco Aurélio voted to determine the unconstitutionality of the provisions. For him, the law has distorted the Union’s active debt collection system and is “in disagreement with constitutional guidelines in the sense of preventing as far as possible the exercise of self-protection by the State.”

Marco Aurélio cited an article by Professor Fernando Facury Scaff in a column in spells, in which the tax official explains that the provision “creates a kind of ‘tax administrative enforcement’, which will begin with the constriction of assets, for subsequent judicial analysis – if this occurs.”

“The system does not close, revealing the lack of respect for the principles of legal security, equal opportunities and effectiveness of the judicial provision, which must be observed by constitutional determination, compared to the idea of ​​the ‘primacy of public credit'” said the rapporteur. His vote was followed by Nunes Marques and Luiz Edson Fachin.

Luís Roberto Barroso opened the line of understanding that the registration is legitimate and is provided for by law, but the unavailability cannot be automatic and requires jurisdictional reserve. “A drastic intervention in property rights requires that the judiciary act.”

Ministers Gilmar Mendes, Ricardo Lewandowski and Luiz Fux also voted. Gilmar also validated the record and noted that asset unavailability may eventually be achievable, but it must depend on the performance of the Judiciary. He voted in favor of the unconstitutionality of only the “make them unavailable” section of the law.

Constitutionality of the rule

Opening the divergence, Minister Dias Toffoli understood that the provision does not offend the clause of reservation of jurisdiction, the adversary and the broad defense.

It also dismissed the alleged crime against Article 5, XXXV, because “it is not necessary to summon the Judiciary for a pre-executable registration, since it is a mere act of registration.” The registry does not rule out the possibility of the debtor going to court, according to Toffoli.

By voting for the constitutionality of the unavailability of assets by the Treasury, Toffoli also understood that the principle of free initiative is not violated, because as the legal entity is the debtor, “the registration will fall on assets and property rights.”

For Toffoli, the contested law sought to improve the efficiency of collection of the credit registered in active debt. Alexandre de Moraes agreed with Toffoli and explained his understanding that the rule does not represent the expropriation of assets, but only temporary unavailability.

The ministers Rosa Weber and Cármen Lúcia also joined this chain.

The actions

The first ADI that questioned the norm was presented by the Brazilian Socialist Party (PSB), which allegedly violated the constitutional principles of due process, reservation of jurisdiction, property rights and isonomy.

According to the PSB, the measure establishes the Rural Tax Regularization Program, Refis do Funrural, and does not help the Tax Authorities to combat debtors who use subterfuge to hide their assets, affecting only those who have debts, but act legally.

Another action was filed by the Federal Council of the OAB, which maintains that the law contains two unconstitutional provisions. The first deals with the possibility for the Public Treasury to communicate the names of taxpayers registered in active debt to the agencies that operate databases and specific registries related to consumers and credit restriction services.

The second allows the tax authorities to disqualify private assets from the Judiciary, blocking them under the pretext of not frustrating the satisfaction of tax debts.

The Office of the Attorney General of the Republic declared the unconstitutionality of the article of the law. The other actions were brought by the Confederation of Agriculture and Livestock of Brazil, the Brazilian Association of Wholesalers and Distributors of Industrialized Products (Abad), the National Confederation of Transportation and the National Confederation of Industry.

Click here to read the rapporteur’s vote
Click here to read Fachin’s vote
IDA 5,881, 5,932, 5,886, 5,890, 5,925 and 5,931