5/30/2022
The 1st Section of the STJ, in the judgment of the Issue n. 981 (Special Appeals nos. 1645333/SP, 1643944/SP e 1645281/SP, rendered under the system of special appeals dealing with the same matter of law, delimited the limits of the responsibility of individual with powers of management with management powers, based on the article 135, III, of the National Tax Code, for cases in which the dissolution of the company is irregular.
On this occasion, it was consolidated by the Court that the individual with powers of management can be held responsible for the tax debts of the company in a Tax Enforcement Proceeding, even if they did not exercise management powers when the event triggering the non-fulfilled tax occurred.
The judgment of Issue n. 981, by the Superior Court of Justice, resulted from an analysis of the application of article 135, III, having concluded that the responsibility of the individual with powers of management in that article must be based on the moment of irregular dissolution, instead of the moment in which the tax obligation was not fulfilled. Therefore, it is the irregular dissolution or the presumption thereof that authorizes the Treasury to held the individual responsible for the tax debts, even it happened prior to their joining the company.
In fact, the aforementioned judgment touches on Theme 962, also recently judged by the Superior Court of Justice in the system of repetitive appeals, where it was stated that the responsibility of the individual with powers of management in a Tax Enforcement cannot occur in the face of someone who, although exercising management powers at the time of the taxable event, without incurring in the practice of acts with excess of powers or violation of the law, regularly withdrew from the Company and did not cause its subsequent irregular dissolution, according to article 135, III, of the National Tax Code.
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Coauthors: Enrico Sarti, Thais Ribeiro Casado, Camila Caçador Xavier and Ingrid Soares Teixeira Peixoto
