After long years and several requests for examination, the Superior Court of Justice has defined the counting of the statute of limitations for redirecting the tax execution to the partners in case of irregular dissolution of the company.
The thesis was defined by the judgment of REsp nº 1.201.993/SP, on a repetitive basis, that is, it applies to all cases involving the matter.
In the judgment, which began in 2011 and was finalized in 2019, the 1st Section of the STJ defined 03 (three) theses on the starting point of the limitation period for redirection of the tax execution, namely:
- the term for redirecting the tax execution to the partners will be of 5 (five) years, as of the summons of the debtor company, when the unlawful act provided for in art. 135, III, of the CTN, precedes this procedural act;
- the positive summons of the debtor company (original taxpayer of the tax liability), by itself, does not cause the beginning of the statute of limitations when the irregular dissolution act is subsequent, since, in this case, there will be no claim against the managing partners, since the mere default on the tax liability does not constitute an unlawful act attributable to the legal entities described in article 135 of the CTN.
In this hypothesis, the initial term of the statute of limitations for the collection of the credit from the violating managing partners is the date of the practice of the unequivocal act that indicates the intention of making it unfeasible to satisfy the tax credit already in course of the executive collection promoted against the taxpaying company, to be demonstrated by the Tax Authorities; and
- in any of the aforementioned hypotheses, the decree of statute of limitations for redirection requires that the inertia of the Public Treasury be demonstrated, and the ordinary courts are responsible for examining the facts and evidence relating to the demonstration of the practice of concrete acts to collect the tax credit during the statute of limitations period.
We are at your disposal should you need any clarification on these or other issues.