Tiago Silva
Lawyer at Marcos Martins Advogados
Every new piece of legislation should be celebrated, as there has long been discussion about the need to update certain rules that do not reflect the dynamism and reality experienced today. In this scenario, one of the most recent expected updates is certainly that resulting from the famous tax reform, a project that aims to harmonize a patchwork quilt sewn together by the Federal Union, State and Municipal Farms.
Following this roadmap is the proposal to reform the Tax Enforcement Law (Law No. 6.830/80), which determines the formal requirements for the judicial collection of taxes, establishing the rights and guarantees of taxpayers and the Treasury.
The proposal provides, in the administrative sphere, for a period of ten days for the taxpayer, after being summoned, to pay or split the debt, and twenty days to petition for a review of the debt or present an advance guarantee for future judicial discussion. If nothing is done within the aforementioned deadlines, the authorities will be authorized to initiate stricter collection measures, such as protests, registration with CADIN and other bodies, as well as pre-enforcement notices.
Another innovation is the creation of Administrative Tax Enforcement, aimed at collecting debts of up to 60 minimum wages for debts owed by the Federal Government, and up to 40 minimum wages for states and municipalities. Although the “new tax enforcement” is in the administrative sphere, the Public Treasury will be authorized to search for assets and constrictions independently, without the need for judicial intervention, with the intention of guaranteeing the means to satisfy their credit.
On the other hand, Judicial Tax Enforcement would undergo an update, as the proposal provides that the blocking of debtors’ property and assets may be determined at the beginning of the process, even before the debtor has been summoned or given the opportunity to guarantee the debt in the process.
It is true that this legislation needs to be updated, but the focus cannot only be on ensuring greater effectiveness in tax collection. It must also be concerned with delivering a new standard that protects the core assets of taxpayers, avoiding the continuation of abuses.
Thus, it is hoped that the new legislation will provide solutions to prevent new cases in which a guarantee or deposit of the full amount of the debt is required in order to prove that it has already been paid – or even to prevent the invasion of partners’ assets, including the decree of unavailability of their assets, in cases where the debt is fully guaranteed by money deposited in an account linked to the process.
Once again, companies, tax/accounting departments and lawyers should be on alert, because it is only through proper control and management of tax issues that it will be possible to avoid excesses and illegalities that may arise.
