01/03/2013
Penalty for late tax against the estate can achieve credits prior to the new bankruptcy law Autor: STJ - Superior Tribunal de Justiça
With the enactment of Law 11.101/05 (new bankruptcy law), it became possible to charge fines to tax against the estate, and this penalty may be imposed even on tax credits whose taxable event occurred before the legislative amendment .
Understanding is the Second Chamber of the Superior Court of Justice (STJ), which authorized the inclusion of fines in the classification of claims in bankruptcy and Food Vendor Pearl Ltda., Mato Grosso do Sul
For the Panel, in the case of bankruptcy declared in the presence of Law 11,101, including a fine in the classification of tax credits in bankruptcy relating to tax credits incurred in the period before the law, does not imply retroactivity to the detriment of the estate.
Fact Generator
The state of Mato Grosso do Sul appealed to the Supreme Court against the decision of the Local Court, which held that Article 83 of Law 11,101 applies only to loans that originated after its entry into force in June 2005. The article deals with the classification of claims in bankruptcy, including "the contractual fines and monetary penalties for violation of criminal and administrative laws, including tax penalties."
According to state court if the fine that the state intends to focus when it was not due to their origin - that is, when the triggering event of taxes - "can not backdate the Law 11,101 to restore credits prior to their validity."
Forecast expressed
On appeal, the state of Mato Grosso do Sul contended that the company was declared bankrupt in 2007 alone, fully applying the new bankruptcy law, no matter what the date of the triggering events obligations.
As for the tax lien, the state said it does not fit the exclusion of any tax penalty, because today's express legal provision of its pertinence, included among the claims of bankruptcy.
For this reason, he argued that one can not make the division of the dates of occurrence of triggering events in fines to determine whether or not the application of Law 11,101. The only timeframe decisive implementation of the new bankruptcy law is the date of the company's collapse.
Law Enforcement
In analyzing the issue, the rapporteur, Minister Mauro Marques Campbell, said the Act expressly 11,101 "does not apply to bankruptcy proceedings or filed bankruptcy prior to the beginning of its term, which will be completed pursuant to Decree Law 7.661/45 ". It follows, according to the minister, the new law of 2005 applies to bankruptcies enacted after its term, which includes the case on trial, in which the company was declared bankrupt in 2007.
The minister noted that the regime of Decree Law 7661 prevented the collection of fines in bankruptcy, in view of its Article 23, paragraph one, item III, and understanding the consolidated Precedents 192 and 565 of the Federal Supreme Court.
However, in its article 83, VII, the new law made possible the collection of fines to tax against the estate. How is this legal regime that applies to bankruptcies enacted after 2005, including late-payment penalty tax, even on claims arising from previous events, not set retroactivity, understood as the Second Panel, which reversed the decision of the Court of Justice.
