The Third Panel of the Superior Court of Justice (STJ) reaffirmed, in a unanimous decision in REsp 2.196.073, that the Federal Government possesses the legitimacy and procedural interest to request the bankruptcy of debtor companies, provided that prior tax enforcement proceedings have proven unsuccessful.
What Changed with the Decision?
Historically, under the former Decree-Law 7.661/45, it was understood that the Treasury could not request bankruptcy, as it already possessed the remedy of Tax Enforcement to collect its debts. However, the current understanding, consolidated by Minister Nancy Andrighi, notes that:
- Reform of the Bankruptcy Law: Law 14.112/20 reinforced the role of the public entity in insolvency proceedings.Scope of Article 97: Law 11.101/05 grants “any creditor” the legitimacy to request bankruptcy, not excluding public creditors.
- Scope of Article 97: Law 11.101/05 grants “any creditor” the legitimacy to request bankruptcy, not excluding public creditors.
- Complementarity of Proceedings: There is no incompatibility between tax enforcement and the request for bankruptcy. When the means of tax enforcement fail, the bankruptcy proceeding becomes useful and necessary for satisfying the debt.
Advantages of the Bankruptcy Court for the Treasury
The decision emphasizes that the bankruptcy action provides tools that ordinary tax enforcement often does not achieve, such as:
- Universal seizure of the debtor’s assets;
- Possibility of revocatory actions (to recover diverted assets);
- Mechanisms for liability of partners;
- Setting the legal deadline for bankruptcy to invalidate prejudicial acts against creditors.
Practical Impact: For companies in crisis, the scenario demands heightened attention. The Treasury now has an aggressive avenue to force the liquidation or restructuring of debtors when assets are not found in traditional tax enforcement proceedings.