Priscilla Folgosi Castanha
Lawyer at Marcos Martins Advogados
In defense of its client, the Marcos Martins Law Firm filed a writ of mandamus against the act of the Undersecretary of the Public Treasury of the State of Minas Gerais, who refused to register a change in registration for the creation of a branch, on the grounds that there was an outstanding tax debt of a third-party company in which the partner also participates.
Although this is a recurring practice of the Public Treasury, in an attempt to have tax debts settled, it is illegal and unconstitutional. There is a violation of the constitutional principle of economic activity and the guarantee of free enterprise, which are fundamental to the constitutional economic order, and also contravenes Precedents 70, 323 and 547 of the Federal Supreme Court, as well as contradicting what is contained in Article 7-A of Law 11.598/07[i], which expressly states that registrations of contractual changes must occur regardless of whether the main or ancillary tax obligations are in order.
The tax authorities have legal mechanisms to enforce tax debts and cannot use the rejection of an administrative request as a confiscatory practice.
The arguments put forward by Marcos Martins Advogado were accepted, and the injunction was granted to prevent the requirement to regularize any pending tax issues in order to change the company’s articles of association, as well as for the coercive authority to proceed with the immediate registration sought, if the only obstacle is the tax debts.
The Public Prosecutor ‘s Office gave its opinion in the case, agreeing with the firm’s thesis. In his ruling, the judge upheld the safety of the preliminary injunction, ordering that the contractual amendment requested by the company be carried out regardless of the regularization of tax debts.
The rejection of the contractual amendment to register the subsidiary occurred when, after a vast strategic study, planning and execution, the client decided to bring part of the production process, which was outsourced, in-house. The client had already acquired the necessary assets and had signed a contract to lease the physical space. The success obtained through the Marcos Martins Law Firm’s defensive thesis prevented the assumption of losses by the hasty outsourcing of the production process that had been strategically internalized.
The Marcos Martins Law Firm makes every effort to defend its clients, constantly studying defensive theses and jurisprudential positions in order to obtain success in their claims, maintaining its commitment to excellence in the provision of legal services.
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[i] This Law establishes general rules for simplifying and integrating the process of registering and legalizing entrepreneurs and legal entities within the scope of the Union, the States, the Federal District and the Municipalities.
