Isabela Magalhães Rodrigues
Lawyer at Marcos Martins Advogados
Recently, in a unanimous decision handed down by the Superior Court of Justice (STJ), taxpayers won an important victory in a decision that rejected the National Treasury ‘s request for online seizure prior to service of process.
The ban on blocking actions via SISBAJUD, known as “stubbornness”, before the summons has been served on the defendant, is justified by the Principle of Least Burdensome Enforcement, which stipulates that debt collection in the judicial sphere must be carried out in the least burdensome way for the defendant.
Now that this understanding has been established, it will be possible for debtors to organize themselves financially so that compliance with that requirement does not jeopardize the performance of the company’s activities, guaranteeing the maintenance of jobs and payment of salaries, as their accounts will be attacked before they are given the right to defend themselves.
It is worth noting that it is not uncommon for tax foreclosures to be filed in order to collect debts that have already been paid, even if they have been paid in installments, and are being discussed in other actions or even in duplicate.
Although the National Treasury has significant amounts to collect, it must use the least burdensome means to guarantee the collection of these taxes, a context which certainly does not include the attachment of amounts in bank accounts prior to the summons.
The prohibition of attachment prior to service of process is fundamental to guaranteeing the effectiveness of the principle of due process of law, since it is from this that the possibility arises of maintaining the delivery of a right without procedural defects.
Thus, the rule that the summons must precede any act of blocking amounts has prevailed, allowing the entrepreneur to choose the best way to guarantee satisfaction of the tax debt, so that any act that violates this understanding can and should be challenged in court, with a view to releasing unduly seized amounts.
