The Tax Liability arises, at first, from the difference, in Brazilian system, between Direct Taxpayer and Indirect Taxpayer.
In fact, the National Tax Code defines the Direct Taxpayer as the taxpayer personally and directly related to the situations giving room to the taxable even, while, on the other side, the Indirect Taxpayer as the individual or company that, without any personal or direct relation to the taxable event, has the tax charged on them by legal provisions.
We should set the premise that the company is an entity with rights and duties that cannot be misunderstood for the ones of individuals or the ones of the companies that are members thereof. Thus, such rights and obligations are limited to the property of such company, as a way of avoiding property commingling and punishments to the individual regularly managing it.
In tax law, the National Tax Code allows for, under certain and rigorous conditions, notwithstanding said debt is the company’s, the redirection of the charge to the individual, either a member, officer, director, manager or legal agent of the company.
Such conditions are showed by the combination of the following factors:
1) it is a company subject to delectus personae;
2) the company regularly or irregularly liquidated does not exist anymore;
3) it is not possible to require the compliance with the tax obligation by the direct taxpayer, the company; and
4) there is action or omission by the person in charge, i.e., the one who has management powers over the company, acting in excess of authority, breaks the law or the articles of incorporation/organization, for example, spending the company’s property to their own benefit, not complying with rights and obligations before the company, etc.
There are discussions on the third-party liability being secondary or joint and several. The role of such difference is in the fact that, since the the liability between the company and the individual indirect taxpayers is deemed as joint and several, the tax entity can direct its charge, at first, to any one of them. On the other hand, since it is deemed as secondary, the tax entity can, at first, charge the debt to the company and, in case of possible success, direct the charge to the individual indirect taxpayers.
Brazilian courts, most of the time, treat the liability as secondary. However, it needs to be said that there are decisions that qualify the third-party liability as joint and several, i.e., they put the principal debtor – the company – and the indirect taxpayer at the same level, with the choice of which one of them should be charged for the performed obligation up to the creditor.
The difference carried out by the precedents, in order to treat the liability as being secondary or joint and several, is intrinsically related to situations in which the irregular dissolution of the company is showed, i.e., when the company stops working in its tax domicile without the duly information to the relevant bodies.
In any case, either secondary or joint and several, the third-party liability shall always depend on a commission or omission by the indirect taxpayer, i.e., the performance of an action for which they did not have powers or that represents a breach of the laws, the articles of incorporation or organization, in addition to the company’s irregular dissolution mentioned above.
On this aspect, it is important to highlight that, although the nonpayment of taxes can be superficially seen as a way of not complying with the tax laws, there is a firm understanding of such situation not being reason, sufficient in itself, to lead to tax charge. It is so provided in the precedent of the Superior Court of Justice no. 430:
“Precedent 430/STJ: The noncompliance with the tax obligation does not generate, in itself, the joint and several liability of the managing member”.
Then, the liability can only be characterized if, together with the noncompliance with the obligation, the indirect taxpayer has been proved to intend to perform actions against the law, the articles of incorporation or organization.
We can also recall the intention to perform an action against the laws or the articles of incorporation or organization must be proved by the tax authority through robust and sufficient evidences.
In addition, other characteristic inherent to the liability herein is: to be liable, the third party needs to have management powers, i.e., they must be a qualified third party, who is liable for debts incurred during its office, either they are or not in it, at the time of the charge.
Thus, a certain manager cannot be liable for taxable events that took place before their management. The reason for this, as we said, is that the liability by the manager can only be admitted in the cases in which they worked in excess of authority, braking the laws or the articles of incorporation, at the moment or period of their work before the company.
We shall now briefly analyze the liability of individuals in cases in which the company hypothetically stops operating, either for irregular dissolution or bankruptcy, since those are very common situations and they always lead to concerns by the managers.
1.2. Irregular dissolution of the company
The irregular dissolution of the company is set, as we mentioned above, when the company stops working in its domicile, without the duly information to the relevant bodies. This is what is provided in the Precedent 435 of the Superior Court of Justice, on this subject:
“An irregularly dissolved company shall be deemed as the one that stops working in its tax domicile, without the information to the relevant bodies, giving room to the redirection of the tax foreclosure to the managing member. (Precedent 435, FIRST SECTION, decision 14/04/2010, DJe 13/05/2010)”
We should note a very reasonable reading of the precedent contents is that, in order to the irregular dissolution of the company to be characterized, there is no need for the company to effectively stop working; it only needs to change its address without the due information to the relevant bodies, such as the Federal Revenue Service, the State Finance Bureau, the Local Government where it is enrolled, etc.
In addition, the finding of the irregular dissolution of the company mitigates the precedent understanding that the indirect taxpayers shall be liable for debts incurred during the time in which they had management powers before the company, with the prevalence of the rule under which the contemporary managers at the moment of the dissolution shall be deemed as indirect taxpayers.
However, we consider it is not a settled theme – the irrelevance of the manager contemporary to the dissolution not being the same as at the moment of the tax noncompliance giving room to the debt being charged. We say so as there are decisions, also from the Superior Court of Justice, that require the joinder of two requirements for such debt redirection, to wit, the individual must be part of the company both at the nonpayment and the dissolution moments.
Another fundamental point to which we call attention is the evidence in the records that the company was irregularly dissolved, with some decisions by the STJ, it shows the simple certification by the marshal in the tax foreclosure procedure saying they did not find or the company did not exist at the place for summons, would be enough to set the irregular dissolution of the company and authorize the redirection of the tax foreclosure to the manager.
1.3 Tax foreclosure redirection
Once the tax nonpayment is verified, and after the needed procedures, the creditor can extract the certificate of overdue tax liability – out-of-court cause to ground the filing of a tax foreclosure suit, instrument that can require the debtor to meet their obligation.
When there is no property that can undergo expropriation by the creditor, to pay the debt, and in case of the hypothesis provided for in tax laws, i.e., the performance of actions against the law, the articles of incorporation or in excess of authority, in addition to the irregular dissolution of the company, the judgment creditor can claim, before the judge, the redirection of the executive claim, in order to enforce the rule on third-party charging provided for in the articles above, by the CTN.
Regarding this aspect, the national precedents has always understand the creditor, in case of no property found, cannot simply request the redirection of the tax foreclosure to the indirect taxpayer. They must, before it, prove the hypothesis provided for in the laws as authorizing the individual liability.
Such situation, nonetheless, is not fully admitted when, although the tax foreclosure is filed only against the company, the name of the member is in the CDA. In such hypothesis, the indirect taxpayer should prove they did not perform any continuing crime, excess of authority or violation to the articles of incorporation.
However, we consider, in spite of the legal provisions, there is a routine action performed by the Finance Bureaus of indistinctly requesting the redirection of the tax foreclosure to the members, managers, agents, officers, without previously proving the performance of acts of excess of authority, violation of the law or the articles of incorporation.
In such aspect, the unduly liable individual shall use procedural means needed to their defense, as, according to what we affirm herein, except for the hypothesis of irregular dissolution, which also depend on evidences – certificate by the marshal proving the company does not work at the place in its registry before public bodies anymore, for example – the tax foreclosure redirection is not automatic.
Technically, bankruptcy is a legal and procedural judicial regime that, through a judgment, aims at the collective foreclosure of property of the debtor that cannot pay their debts. In such regime, the creditors seek, through the divisions of the property owned by the one undergoing bankruptcy, a way to pay the debts, according to certain rules set by law.
With the in-court adjudication of bankruptcy, the estate is formed – a true universality of rights – that starts to be liable for the debt in lieu of the company originally being charged.
Although one of the basic principles of the bankruptcy proceeding is, through the start of a bankruptcy case, assuring equitable conditions between creditors with the same nature, we need to recognize the laws in force provide for the preference of some credits before others, with such distinction based on public interest.
Thus, tax liabilities are privileged, as they must be payed in preference to others, except for credits arising from labor law or work accident and credits with collaterals at the limit of the value of the encumbered property.
We should, however, consider the tax credit is not included in the bankruptcy case and it is subject to allowance, so as the tax foreclosure pends independently of bankruptcy and its adjudication does not interrupt the tax foreclosure, as per the understanding of our courts.
On such aspect, it is important to mention the tax foreclosure, at first, continues against the estate. If, at the end, the property in the estate are not enough to pay the tax debts of the former company, its officers, members, agents and managers are not automatically liable, except if the hypothesis herein are verified.
Thus, without the characterization of the irregular dissolution of the company, its closing due to the adjudication of bankruptcy does not automatically generate the liability of the members, officers, managers and agents of the company, except the tax authority shows the performance of actions against the law, the articles of incorporation or in excess of authority.
2. Phases in which the tax and criminal tax liability can occur
As already highlighted in the chapter above, Brazilian tax law, like in many other countries, considered different hypothesis in which the liability for the payment of the unmatured (e.g. tax substitution) or matured (e.g. personal and joint and several liability) tax can be given to a taxpayer different from the one liable for the practice of the taxable event.
Thus, we shall now approach the particularities inherent to the phases of charging the already assessed tax liability that can lead to tax liability of third parties who did not (forcefully) take part in the taxable event, such as members, officers, managers, etc.
It is important to highlight that the following chapter shall approach the characteristics of the in-court and our-of-court tax litigations in federal scope (federal taxes), as for state and local taxes, we need to meet the particularities of the laws of each of the 27 federal entities and of the more than 5,500 municipalities.
Anyway, although there can be particularities in the laws of each of the referred federal entities, both tax proceedings and the structure of said revenue entities follow a reason that allows us to talk in a general way, as follows.
2.1. Out-of-court Phase (IN RFB no. 1862, of December 27th, 2018 and Ordinance PGFN no. 948, of September 15th, 2017)
2.1.1 During the out-of-court proceeding
a) Tax Authority assesses if there is evidence of the taxpayer incurring in any hypothesis (refer to previous chapter) of the laws giving room to joint and several or personal liability of officers/managers/legal agents of the notify company.
It is important to highlight that third parties can be held liable not only within the scope of the violation and penalty arising from the noncompliance with the main and accessory tax obligations, but also when it comes to compensations carried out by the direct taxpayer and not confirmed/approved by the tax authority (refer to art. 8, of IN RFB no 1.862/2018).
b) Em caso afirmativo, o Agente público responsabilizará os sujeitos indicados acima, podendo ainda, (i) criar um incidente de “Representação Fiscal para Fins Penais” (vide próximo capítulo) que aguardará o desfecho do contencioso fiscal administrativo, e/ou (ii) instaurar procedimento de acompanhamento (arrolamento de bens) ou restrição (cautelar fiscal) patrimonial no caso dos envolvidos se enquadrarem nas hipóteses da legislação.
b.1. In such case, the public agent shall make the subjects above liable, and there is room for (i) creating an incident of “Tax Claim for Criminal Purposes” (refer to the next chapter), which shall wait for the end of the out-of-court tax litigation, and/or (ii) start a supervision procedure (small-estate probate) or (tax provisional) restraint on property in case the encompassed ones are classified within the hypothesis in the laws.
b.2. the tax provisional measure, on its turn, is the procedure that can be carried out in the same phase (or even after the out-of-court phase) when the Federal Tax Authority identifies the deliberate practice of actions by the taxpayer towards making the immediate or future payment of tax liability difficult (e.g. lack of domicile, property dissipation, assumption of different debts, etc).
c) Returning to the discussion before the administrative scope, in case there is no agreement with the notification and liability by the Federal Tax Authority, independent defenses shall be presented both by the company and by the indirect taxpayers (individuals), who, at first, can use the same lawyer or law firm. The discussion out-of-court does not require the payment of costs to the public entity or guarantee over the debt through a deposit or other type of guarantee.
It is important to highlight that the indirect taxpayer can approach, in their out-of-court defense, not only the matter justifying their (personal and/or joint and several) tax charge but also the reasons for the requirement for such tax liability not being due.
The discussion on the sufficiency of the tax notification and the tax charge to third parties (officers, managers, etc.) shall be carried out in two instances, that is, in case of a decision not granted to the initially presented defenses, there is room for an appeal before the court of appeals, composed in an equal way by judges representing the Tax Authority and representing the Direct Taxpayers (equality body).
The end of the tax out-of-court litigation can be followed by three (03) severances, to wit:
(i) final decision granted to the integral extinction of the tax liability: In such case, the debt is extinct and, as a consequence, the liabilities over the companies and indirect taxpayers are also extinct. Any procedures for liability within the criminal scope and for the restraint/lien of property of the encompassed ones are also dismissed.
(ii) final decision granted only regarding the suspension of the joint and several/personal tax liability of officers (maintenance of the requirement for the company): In such case, the third-party indirect taxpayer (manager, officer, etc) shall have the tax charged, as it shall only be charged to the company, and it can discuss it in court. Possible property restraint/lien made on behalf of the indirect taxpayer are dismissed. Although improbable, it is possible that, in such hypothesis, the procedure for assessing the tax charge for a tax crime by the indirect taxpayer is maintained (refer to the next chapter).
(iii) final decision not granted, maintaining the joint and several/personal liability and the requirement for tax liability: In such case, both of them (company and indirect taxpayers) can bring to the courts the discussion ended out-of-courts either regarding the sufficiency of the tax charge and regarding the third-party tax liability (manager, officer, etc).
2.1.2. After the end of the out-of-court tax litigation and the in-court phase
220.127.116.11. Out-of-court, by the Federal Tax Authority of the Federal Revenue Service
After the dismissal of the out-of-court discussion with maintenance of the tax charge and the tax liability of third-parties, the liability shall be forwarded to be listed as overdue tax liability for later charge through a suit for tax foreclosure.
It is important to highlight, however, that in case the Tax Authority has not held third parties jointly and severally or personally liable during the out-of-court phase, it can fundamentally do it then (art. 15, IN RFB 1.862/2018), with those lately held liable having to file an appeal for discussion on the liability. Such appeal shall pend in an only instance and shall not suspend the procedures for tax charge and listing as overdue tax liability.
18.104.22.168. Out-of-court, by the Prosecution Office of the National Treasury (PARR)
Still before the forwarding of the liability for legal charge (tax foreclosure), the Prosecution Office of the National Treasury, in the specific case of suspicion on the irregular dissolution of the company, can start an Out-Of-Court Procedure for Tax Liability (“PARR” in order to assess the third-party liability (managers, officers, members, etc). Such procedure aims, in the greatest part, at seeking signs of irregular property dissipation by the ones responsible for the company about to undergo the execution of judgment.
The third parties held liable within the PARR shall be entitled to present a defense (within 15 days) and an appeal (within 10 days) in order to show the reasons for the insufficiency of the tax charge carried out by the Prosecution Office, and we shall highlight presenting such appeal does not interrupt the procedure for tax charge.
2.2. In-Court Phase
In the courts, the discussion on the sufficiency of the tax liability and the tax charge of third parties can be faced by the interested parties in two ways. Preventively/Proactively, from the initiative by them of advancing any procedure for in-court charge by the Government and filing the action for annulment of the tax liability. Or reactively, through the discussion within the tax foreclosure scope filed by the Government.
Both the forms presented above give room to the discussion of the defense matters related to the joint and several and/or personal liability of third parties and the sufficiency of the tax charge in itself, however, within the tax foreclosure scope, this discussion requires the guarantee of the charged value, which, in case it is not made through a deposit, insurance or bank-issued guarantee, shall be imposed by the National Treasury through property restraint of the assets of all the indirect taxpayers up to the limit of the charge.
The liability of third parties, such as members, managers, officers, etc, can also occur during the tax foreclosure (when it is not attributed and arises from the out-of-court discussion), when the National Treasury proves the irregular dissipation of the company, the commingling of the property of the company and its members, the existence of a business group in fact or any other factual/judicial situations that are signs of a possible fraud or property dissipation.
Regarding the hypothesis of inclusion of the members or officers, during the tax foreclosure, indicated above as an example, the indirect taxpayers must prove, throughout the suit (3 instances) the nonexistence of the situations provided for in the laws for liability, such as, (i) lack of irregular dissolution, (ii) irregular dissolution performed after the leave of the member, who could not intervene in the irregular dissolution after transfer of interest or shares (interpretation still not settled in the precedents), (iii) members or officers not having managing powers and, for this reason, not taking part in the possible decisions leading to the tax noncompliance, (iv) statute of limitations of the right to charge by the National Treasury, (v) regular dissolution of the company (proof of bankruptcy, making the member not liable), (vi) lack of business group in fact, among others.
3. Criminal Aspects
There has always been a relation between the Tax and the Criminal Law and such theme is currently more relevant in Brazilian scenario due to the decision issued by the STF for judging the Appeal RHC 163,334, in which the STF decided the fact the direct taxpayer files and does not pay the ICMS over their own operations can be deemed a crime.
As managing members can appear as defendants in criminal procedures, such decision can impact the corporate routine and, for this reason, it must be approached.
3.2. On Tax Crimes – Articles 1 and 2 of the Act no. 8,137/90
The more common Tax Crimes are provided for in articles 1 and 2 of the act 8,137/1990, and they basically approach the nonpayment/reduction in the payment of taxes and embezzlement, that is, retaining of a certain third value destined to any taxes and not paying them to the tax authority.
As a rule, due to what is set forth by the tax laws, the joint and several liability of an individual takes place in specific cases, to those who have a common interest on the situation giving room to the taxable event, and the secondary one to those who are personally liable for the credits corresponding to the tax obligations arising from the actions performed in excess of authority or violation of law, articles of incorporation or bylaws.
In other words, in order for the criminal liability of managers, members, directors, officers, etc. to take place, there is the need for the joint practice by those so as to lead to the taxable event under the tax point of view, and, in addition, there must be an willful act, such people must act willfully and intentionally, that is, as a rule, the one liable must be the one who gives room to the result.
In case of starting of an Investigation to assess the crime, there shall be the risk for the individuals to be investigated at first, and, in case the intention, the action or the omission are verified, there shall be the risk of a possible defense before a criminal procedure.
Of course, there is a number of defense elements that can be approached and proof documents that can help the criminal defense.
The current situation is a trend for more room to include individuals as liable for taxes and, as a consequence, for the criminal aspect.
There are two kinds of basic Liability, to wit: (i) through a suit, such as determining nonpayment of taxes; and (ii) through omission, not doing something that should be done, such as a specific obligation to checking the accounts. For this reason, legal assistance is needed.
3.2.1 We developed a hypothetical situation to facilitate understanding, as follows:
Let us hypothetically imagine that a company undergoes a tax notification for nonpayment of taxes or for the undue tax payment, and officers are included in the liability;
In case a decision is granted to the direct taxpayer, there is no room to consider liability under criminal aspects, as the tax in itself was dismissed by the decision.
However, in case a decision is not granted to the company and the others, the tax is definitively set and criminal severance can occur. Thus, the proper legal consultancy is very important to support the company still under the tax aspects, moreover for the fact that such liability can be dismissed still out-of-court and always assessing it together with the criminal risks.
In the presence or lack of specific request by the inspection to assess a crime, possible crimes can be assessed due to the independence of the tax and criminal legal areas, either by the Special Tax Authority or the Prosecution Office, through information by ex-employees, etc.
Important aspects that must be considered are the assessment by a tax law firm on the possible classification as tax crime, and the possible forwarding of the charge legal discussion.
In case the company choses to keep the discussion within the judicial scope, forms of guarantees for the charge must be evaluated. The company use to deposit the whole value of the charge or present a performed bond or bank-issued guarantee.Depending on the tax prosecution, the form of the guarantee must be strategically evaluated, also thinking on the possible criminal severance.
3.2.2 On the Dismissal of the Punishability and Suspension of the Punitive Claim for the crimes
The dismissal of the punishability is provided for in article 34 of act 9,249/95 and sets, in case the tax is paid, the direct taxpayer shall not be punished.
On the other hand, the suspension of punitive claim means the suspension of the right by the State of punishing the direct taxpayer, being such suspension conditioned to the charge in installments before the possible information filed by the Prosecution Office, a hypothesis provided for in article 68 of act 11,941/09.
An important aspect of the suspension of the punitive claim is that while the installments remain, there shall be no criminal statute of limitations. It means that in case the installments are not wholly complied with, the criminal procedure can be restarted.
3.2.1 Understanding of the Brazilian superior courts
We develop a precedents scenario on some points, as follows:
On the installments after the information is received, there is divergence of precedents, moreover for the fact that the laws determine the suspension of the punitive claim since the installment is performed before receiving the information. However, there are decisions granted to the direct taxpayers. 1
The payment, as a rule, extinguishes the punishability at any time, before or after the information. Regarding it, Decision STJ HC 362.478/SP, DJe 20/09/2017.
There are still come details on the dismissal of Investigations while producing evidence in situations in which the direct taxpayer chose to forward the discussion to the courts and wholly deposited the value as a guarantee for the charge, in an understanding favorable to the direct taxpayer as above.
Thus, we conclude that there are arguments for defense and strategies that can be considered in the different phases of the out-of-court and in-court tax procedure, and, again, we should highlight the role played by the proper and constant legal assistance in order to mitigate the tax and criminal risks herein.
1 – REsp 884057 RS 2006/0195453-6 (STJ)
Laws related to it
1988 Federal Constitution;
Act 5172/66 – National Tax Code;
Act 8137/90 – Tax Crimes Act;
Act 9249 /95 and Act 9430/96 – On the Dismissal of the Punishability and Suspension of the Punitive Claim;
Act 10684/03 and Act 11941/09 – On the Dismissal of the Punishability and Suspension of the Punitive Claim;
Act 12382/11 – Representation for Criminal Purposes;
Authors: Ricardo Hernandes and Rodrigo Minhoto
Fleury, Coimbra & Rhomberg Advogados
Rua do Rocio, 350 – 10º andar – Vila Olímpia
BR-04552-000 São Paulo – SP
Tel +55 (11) 3294 1600
Authors: Jorge Facure, Carlos Silva, Ricardo Hernandes, Rodrigo Minhoto
Gaia Silva Gaede Advogados
Rua da Quitanda, 126
BR-01012-010 São Paulo – SP
Tel +55 (11) 3797 7400