First of all, tax enforcement is a legal process through which the Public Treasury collects debts registered as outstanding tax liabilities from debtors.
Here, we will look at the main points of tax enforcement and some practical tips for regularizing the situation.
How does it work?
In summary, Law 6.830/80 governs this process based on an extrajudicial enforceable instrument, the Active Debt Certificate (CDA).
Indeed, after the tax enforcement process has begun, the judge's first order consists of summoning the defendant so that, within a period of five days, they can pay the debt or offer a guarantee in court.
Therefore, the Public Treasury's objective with enforcement is to expropriate the debtor's assets that are sufficient to pay the debt, when the debtor does not do so voluntarily.
What are objections to tax enforcement?
For all intents and purposes, objections to tax enforcement proceedings are a typical means of defense for the defendant, as provided for in Article 16 of Law 6.830/80.
In effect, objections are raised through a separate legal action brought by the defendant when they disagree with the debt collection or wish to dispute it. This objection requires a prior deposit in court.
It is worth noting that objections to enforcement follow an ordinary procedure, and even though enforcement proceedings are already underway, the process will continue normally, considering all phases of the ordinary procedure, such as the production of evidence, for example.
In addition, the filing of an objection automatically suspends the tax enforcement proceedings.
Ultimately, from the moment the guarantee is provided by the debtor, there is no risk of loss for the Public Treasury, because even if there is a delay, the tax authorities will have guaranteed satisfaction of their claim.
In practice, what should you argue in defense against a property tax enforcement action?
Property tax (IPTU) has frequently been an example of a debt registered as delinquent. However, because it is a tax on real estate, there are some discussions about the possibility of seizing the only family property.
Specifically, the right to housing enjoys special protection from the State, as stipulated in Article 6 of the Federal Constitution , and is considered a constitutional principle directly related to family property.
Based on the teachings of the illustrious Maria Berenice Dias:
"The right to housing is considered one of the inherent personality rights of the human person, both as a prerequisite for the right to physical integrity and as an element of the moral structure of the person."
In contrast to Law 8.009/90 , which deals with the unseizability of family property, it stipulates that debts related to IPTU (Property Tax) are an exception to this unseizability. This means that there is a possibility of the seizure falling on the debtor's only family property.
However, despite the existence of such a provision, in the case of the only family property, it is essential to observe the principle of least onerous execution, as contemplated by article 805 of the CPC/2015.
Therefore, there are more viable ways to proceed with debt collection in these situations.
One example is replacing the family home with any asset that satisfies the tax debt, or even arranging payment plans with the municipal tax authorities where the property tax is owed.
Tips for tax enforcement
In practice, legal professionals who wish to work in tax enforcement should carefully analyze the "Certificate of Outstanding Debt".
In this way, you can identify several defects, including: forfeiture, statute of limitations, and lack of standing to be sued.
Decadence
For the analysis of the statute of limitations, it is important to assess the method of tax assessment. In other words, the professional must verify whether the tax charges are assessed ex officio, by declaration, or by self-assessment.
This is because the starting point for calculating the statute of limitations is different depending on the type of tax and, consequently, the method of assessment.
Prescription
As determined in article 174 of the CTN (Brazilian Tax Code), the statute of limitations is 5 years.
It is true that the tax enforcement process cannot last indefinitely, and once the Public Treasury's objective is not achieved, the right to enforce the debt expires.
Therefore, it is the Public Treasury that has the obligation to locate the debtor's assets for expropriation. However, if the assets are not located, the tax enforcement proceedings are initially suspended for a period of one year, pursuant to Article 40 of Law 6.830/80.
If no assets are located within this timeframe, the case is sent to the archives.
This does not mean that it will be extinguished, as any new information that the Public Treasury has regarding assets in the name of the debtor may be used to continue the tax enforcement proceedings.
Similarly, if the process remains inactive for five years without locating any assets, it may be possible to declare the statute of limitations has expired.
Therefore, verifying the statute of limitations requirement is essential to determine the possibility of extinguishing the debt, according to article 156, V, of the Brazilian Tax Code (CTN ).
Lack of standing to be sued
In summary, another premise that can extinguish the debt, and in some circumstances, proceed with regularization with the tax authorities, is passive illegality.
In several instances, the tax authorities may act improperly, making it necessary to analyze the type of tax, the person who performs the taxable event, and the responsibility for collecting that tax.
In many cases, although your client is the one who triggers the tax liability, the responsibility for collecting it does not lie with them. For example, the case of income tax withheld at source. In this case, the paying source is specifically responsible for collecting the tax.
It is noticeable that these three— lapse, prescription, and passive illegality —while not the only possible defects, are the most common and can guarantee the extinction of debt collection, even if the company or its client did not collect the debts at the correct time.
Therefore, in addition to extinguishing the tax debt, such measures can also prevent asset seizure and, in some cases, regularize the entire situation.
