Considering the absence of specific rules regarding the statute of limitations on the collection of an administrative fine, the judge applied Decree No. 20910/32 to the case, since the debt has a Public Law nature, given the position handed down by Superior Court of Justice (STJ) (Special Appeal (REsp.) No. 623023/RJ), which establishes that the statute of limitations is five years counted from the issuance of the deficiency notice by the government.
The creditor municipality filed a tax execution proceeding against Vivo, aiming at the payment of liabilities pertaining to Municipal Services Tax (ISS) and Environmental License Rate, relating to the operation of a telephone tower.
Vivo, in its defense, in addition to proving the settlement of ISS debts, claimed the recognition of the original statute of limitations for the collection of debt pertaining to the Environmental License Rate, with the consequent discharge of execution.
To this end, it claimed that the municipality intended to receive a tax liability assessed in 2014, through a tax foreclosure filed only in 2022, thus surpassing the five-year limit.
The motion to stay execution was accepted to operate as supersedeas, since, in addition to the guarantee of execution, the presence of the requirements of interlocutory relief was found, namely: the probability of the right and danger of damage, provided that there is no danger of irreversibility of the measure.
After due prosecution, the judge, Luciane Cristina Duarte da Silva, granted the motion to stay execution, holding the complaints fully valid, in view of the settlement of the debts pertaining to ISS, in addition to recognizing the original statute of limitations of the debt concerning the Environmental License Rate.
The judge, tenured of the 2nd Tax Court of Guapó, considered the following: “in the absence of a special rule aimed at regulating the statute of limitations on the collection of an administrative fine, Dec. No. 20910/1932 should be applied, providing that the debt is originally established in Public Law, pursuant to understanding rendered by STJ in REsp No. 623.023/ RJ, which provides that the statute of limitations should be five years counted from the issuance of the deficiency notice by the government.” “In point of fact, in the collection of its liabilities, the Government should fulfill the same restriction applied to taxpayers when it intends to receive taxes owed to the former one, in keeping with the principle of equality, a corollary of the principle of symmetry,” it stated.
The statute of limitations of tax liability means the loss of the right of collection by the Tax Authority, arising from the lapse of a certain period provided for in the laws. There is statute of limitations for the collection of liability within the court system, as occurred in the present case, and the statute of limitations for the collection by administrative means, so it is important to understand how the doctrine of statute of limitations impacts on the right of the Tax Authority to seek payment of taxes owed, as well as on the taxpayer’s obligation.
Currently, several tax foreclosures are filed with improprieties that are often irremediable, which is why it is important to stick to the information stated in the Certificate of Overdue Tax Liability (CDA), which has a rebuttable presumption of liquidity and certainty, since, in addition to the statute of limitations to be taken into consideration, the Government should fulfill all the legal requirements set forth in Articles 2 of the Tax Foreclosure Law (Law 6830/80) and 202 of the National Tax Code.
The lawsuit was under the care of Ernesto Borges Advogados.
Motion to Stay Execution No. 5585083-31.2022.8.09.0069
Tax Foreclosure No. 5203065-26.2022.8.09.0069
Available at: https://www.jornaljurid.com.br/noticias/juiza-acolhe-embargos-a-execucao-fiscal-opostos-por-empresa-de-telecomunicacoes-em-razao-do-reconhecimento-da-prescricao-originaria-do-credito-tributario
Autor: Paulo Henrique das Flores Porto • email: paulo.porto@ernestoborges.com.br
