Juliano Marini Siqueira
Lawyer at Marcos Martins Advogados
Since 2012, with the insertion of the sole paragraph in article 1 of Law No. 9,402/1997 (Protest Law), the Federal Government, the States, the Federal District and the Municipalities have been legally authorized to submit tax credits formalized through Active Debt Certificates to protest, denoting an indirect way of coercing taxpayers to pay their taxes, a practice not permitted under Brazilian law.
The adoption of this mechanism is justified as an effective and less costly means of obtaining payment of debts, and because of the difficulty in suing the Judiciary when it comes to small claims, due to the costs of enforcing judicial collection, which can often exceed the value of the claim itself.
Professor Ives Gandra da Silva Martins, when dealing with the theory of tax imposition, states that tax is a rule of social rejection, because all taxpayers, from all geographical areas, pay more than they should to support the government in what it returns to the community in terms of public services, and to support the waste, the stewardship, the employment of those in power (O Sistema Tributário Brasileiro, p. 11, 2009, Saraiva).
However, regardless of all the bonuses achieved by the states in protesting the CDA, it should not be forgotten that the appropriate way to collect a duly registered and formalized tax obligation is through Tax Enforcement.
And it is precisely for this and other reasons that the issue in question is the subject of much discussion in doctrine and case law.
This is because, as stated above, the Certificate of Active Debt has Law No. 6.830/80 as its own special vehicle to support its collection, so seeking different means to force its payment goes against what Brazilian law determines, since it is unquestionably forbidden any and all means that indirectly prove to be coercive to obtain payment of taxes.
However, in order to stop/cancel the protest of the Active Debt Certificate, the taxpayer has three options: pay the debt, pay it in installments or seek, through specialized lawyers, a court order to cancel or stop the protest.
To support the judicial request, the main allegations used to defend the unconstitutionality of the protest of the Certificate of Active Debt are: i) the protest used in this way is classified as a Political Sanction, a practice prohibited by the Federal Supreme Court, ii) deviation from the purpose of the protest, iii) the unconstitutionality of article 25 of Law No. 12,767/2012[1] and, iv) the incompetence of the notary’s office to protest the CDA.
What has been seen in practice is that in the first instance, judges have still been reluctant to protest Certificates of Active Debt, on the understanding that protest is permitted due to express legal authorization.
However, this view has been changed in the lower court, as the judges of the 9th Chamber of Public Law of the São Paulo State Court of Justice have firmly held that it is impossible to protest the Certificate of Active Debt.
The consolidated position of this chamber embraces the thesis that the Treasury has no interest, since the CDA enjoys a presumption of liquidity and certainty, and its execution takes place independently of the protest. According to the judgments, the systematic interpretation of Article 1 of Law No. 9.492/97 [2]and Articles 128 and 204 of the National Tax Code [3]points to the conclusion that the protest only aims to protect the credit right against the debtor, constituting the crisis of payment and, consequently, the debtor’s default.
We mustn’t forget that the Treasury has the power to enforce the debt by registering it as an active debt, which removes the interest in protesting the title. If what the creditor is seeking is publicity for the debt, the registration as an active debt does so in accordance with the Tax Enforcement Law.
In this sense, let’s look at one of the judgments.
INTERLOCUTORY APPEAL. PRECAUTIONARY MEASURE TO STOP PROTEST. CONTESTED JUDICIAL ACT. REJECTION OF PRELIMINARY INJUNCTION. OBJECT. Suspension of CDA protest. Subject to the personal opinion of the Reporting Judge, the prevailing opinion of the Chamber, which points to the lack of interest for the Treasury to protest the enforcement instrument, prevails. The search for satisfaction of the debt must be carried out by the least burdensome means for the debtor. Proof of the legal requirements for granting the injunction. Protests suspended. Decision reversed. (TJSP, Case No. 2049196-80.2015.8.26.0000, Reporting Judge José Maria Junior, 27/01/2016)
There is conformity in the position adopted with other Public Law Chambers.
AGGRAVO DE INSTRUMENTO Action for a preliminary injunction to stop a protest – On April 29, 2015, the Special Body of this High Court of Justice ruled on plea of unconstitutionality No. 0007169-19.2015.8.26. 0000, held that the aforementioned law and the possibility of protesting the CDA were constitutional – Despite the opinion of the Colendo Órgão Especial, the protest in question does not fit, on a different basis, namely that provided for in article 620 of the CPC – Principles of less onerousness for the debtor and reasonableness for the creditor – The Public Treasury already has the prerogative to promote the pertinent tax execution with judicial constriction of the debtor’s assets Intelligence of Law no. 6. 830/80 and the National Tax Code The protest of the CDA makes it impossible to obtain credit in the financial system, causing serious damage to tax debtors – Precedents of this High Court of Justice of São Paulo and of the E. Superior Court of Justice. Decision granting an injunction to suspend the protest, upheld – Appeal by FESP, dismissed” (Rapporteur: Marcelo L Theodósio; District: Votuporanga; Judging body: 11th Chamber of Public Law; Date of judgment: 07/07/2015; Date of registration: 07/08/2015) (emphasis added).
It is also worth noting that admitting that the protest of the Certificate of Active Debt is legal is the same as putting aside the core of the Law, which is the dignity of the human person, given the embarrassment and impediment that such a measure causes to taxpayers (legal entities are prevented from continuing their business activities and individuals cannot complete their private life goals).
Unfortunately, however, although there are numerous favorable decisions on the unfeasibility of out-of-court protests of Active Debt Certificates, in practice this measure is becoming more and more common to coercively enforce the payment of taxes, leaving taxpayers with the alternative of seeking the Judiciary to succeed in canceling protests.
[1] Law 12.767/2012
Art. 25 Law No. 9492, of September 10, 1997, shall come into force with the following changes: “Article 1 (…) Sole Paragraph. Certificates of active debt of the Federal Government, the States, the Federal District, the Municipalities and the respective municipalities and public foundations are included among the securities subject to protest.”
[2] Law 9.492/97
Art. 1 Protest is the formal and solemn act by which default and non-compliance with obligations arising from securities and other debt documents is proven.
Sole paragraph. Certificates of active debt of the Union, the States, the Federal District, the Municipalities and their respective public bodies and foundations are included among the titles subject to protest.
[3] National Tax Code
Art. 128. Without prejudice to the provisions of this chapter, the law may expressly assign liability for the tax credit to a third party, linked to the event giving rise to the respective obligation, excluding the taxpayer’s liability or assigning it to the taxpayer as a supplement to the total or partial fulfillment of the said obligation.
Art. 204. A duly registered debt enjoys the presumption of certainty and liquidity and has the effect of pre-constituted proof.
