Tax liability in dissolution and business succession

The end of a society, or the change of controlling partners, is no reason for the tax authorities to stop charging the outstanding tax debts. In this sense, Brazilian law brings, within the scope of the National Tax Code (CTN), stipulations on tax liability in cases of dissolution or business succession.

For example, Article 133 establishes that it is responsible for the taxes due to the date of the act the natural or legal person of private law that acquires from another, by any title, trade fund or commercial establishment, industrial or professional, and continue their exploitation, under the same or other corporate reason or under individual firm or name.

Regarding the dissolution of the company, the Superior Court of Justice (STJ) discussed the responsibility in the face of tax enforcement when the closure of activities is irregular.

In theme 981, the thesis signed by the court was that “the redirection of the tax enforcement, when based on the irregular dissolution of the executed legal entity or the presumption of its occurrence, may be authorized against the Partner or third party non -partner, with powers of administration on the date on which the irregular dissolution configured or presumed, even though no management powers has not been exercised when the event generating the unquoted tax, according to article 135, III, of the CTN. "

The thesis signed by the first section, however, had divergence between the STJ's judging classes: the first class understood that the partner or administrator could not respond personally for the tribute if he had joined the company Only after the chargeable event; Already the Second Class, defending the position that remained the winner, conditioned the personal liability of the managing partner to a single requirement-to be in the administration of the legal entity performed at the time of his irregular dissolution or the practice of act that presumes his irregular dissolution .

in line with the winning decision, in the judgment of theme 962, it was stipulated that only the partners who followed the company after the tax generator will be held responsible. In this case, if there was no irregular removal of the partner or administrator, the simple lack of payment does not generate subsidiary liability to the partner - it is indispensable, so that he has acted with excessive powers or infringement of the law, contract or statute of Company.

In the case of micro and small businesses, it is possible to hold the partner responsible for the non-payment of taxes, Although without the issuance of a certificate of fiscal regularity, since there is the possibility of promoting the regular dissolution of this category without the presentation of that certificate.

In the case of heritage succession, if the succession was not informed to the tax authorities, the execution of previous tax credit launched for the successful company can be redirected to the incorporating company without the need to change the debt certificate. Active (CDA).

The theme 1.049 was defined with the following wording: "Tax execution can be redirected to the detriment of the successor company to collect tax credit related to the generating fact after the business incorporation and still launched on behalf of the name Successful, without the need for modification of the CDA, when verified that this legal business was not informed in due course to the tax authorities. "

On the other hand, if the succession has been communicated to the tax authorities before the chargeable event, yes, the nullity of the launch made on behalf of the incorporated company and the impossibility of modification of the passive subject should be recognized in the name of the company scope of tax enforcement, being prohibited the replacement of CDA for this purpose, pursuant to Precedent 392 of the STJ.

In case of disregard of legal personality, the second class of the STJ has decided that the incident of disregard for the redirection of tax enforcement in the succession of companies when there is actual economic group configuration and in confusion is configuration Patrimonial.

Based on this understanding, it was also established that the judge can directly determine the redirection of the tax enforcement to hold society responsible for business succession, not applying the disregard of legal personality when the tax authorities charge the debt of the Administrators, directors, partners or other companies in case of liquidation of the company, express legal determination, common interest in the fact that generates the tax, excessive powers or infringement of law, contract or statute (arts. 124, 133 and 135 of the CTN).