The New Civil Procedural Law Code introduces deep changes in the Brazilian procedural law system and directly impacts Tax Law insofar as tax law adopts on a complementary basis the provisions of the Civil Procedural Law Code.
Among the changes that affect Tax Law, it is worthy to emphasize the change introduced by Article 835, Paragraph 2, which equalizes the guarantee offered to secure the court proceeding by cash deposit and bank guarantee to secure tax collection proceedings, amending, accordingly, Articles 7 and 9 of Law 6.830/80 (Tax Collection Proceedings' Law).
It should be pointed out, however, that the guarantee insurance is not stated among the guarantees to secure the proceeding mentioned in Article 151 of the Tax Code (CTN), which regulates the suspension of the enforceability of the tax debt. The practical consequence of this may be easily perceived, for example in the filing of a claim for cancellation of a suit. Everything leads to believe that the court rulings will dispense to the guarantee insurance the same treatment that they dispense to the bank guarantee:
TAX LAW MATTER – SPECIAL APPEAL REFLECTING THE DISPUTE – ARTICLE 543-C OF THE CODE OF CIVIL PROCEDURE (CPC) – GUARANTEE AND ISSUANCE OF THE CPD-EN CERTIFICATE – POSSIBILITY – SUSPENSION OF THE COLLECTIBILITY OF THE TAX DEBT – ARTICLE 151 OF THE TAX CODE (CTN) – NON-EXISTENCE OF EQUALIZATION OF THE BANK GUARANTEE TO THE DEPOSIT OF THE FULL AMOUNT OF THE TAX DEBT FOR THE PURPOSES OF SUSPENSION OF THE COLLECTIBILITY – BINDING
PRECEDENT (SÚMULA) 112/STJ – VIOLATION OF ARTICLE 535, II, OF THE CPC NOT CHARACTERIZED – FINE – ARTICLE 538 OF THE CPC – EXCLUSION (STJ. Appeal REsp 1.156.668 lodged in Repetitive Appeal).
It is important to point out that in 2003, when the preliminary injunction was introduced in the CPC, the introduction thereof in the CTN was needed so that it could be accepted as a cause to support the suspension of the collection of the tax debt. Therefore, in the absence of the inclusion of the bank guarantee and guarantee insurance in the text of Article 151 of the CTN, it is unlikely that same will generate the effect of suspending the collection of the tax debt.
Another important change was introduced by Article 85, Paragraph 3, which establishes a percentage criterion that applies to the condemnation to pay decisions in suits where the Treasury Department is a party thereto. In such suits the limits of the attorneys' fees are established in five different "ranges", namely:
- In the value of the condemnation or economic benefit that corresponds to up to 200 minimum wages, the attorneys' fees rate shall be between 10 and 20%;
- In the value of the condemnation of economic benefit that corresponds to more than 200 up to 2,000 minimum wages, the attorneys' fees rate shall be between 8 and 10%;
- In the value of the condemnation of economic benefit that corresponds to more than 2,000 up to 20,000 minimum wages, the attorneys' fees rate shall be between 5 and 8%;
- In the value of the condemnation or economic benefit that corresponds to more than 20,000 up to 100,000 minimum wages, the attorneys' fees shall be between 3 and 5%; and
- In the value of the condemnation or economic benefit that corresponds to more than 100,000 minimum wages, the attorneys' fees shall be between 1 and 3%.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.