In a recent decision issued by the 3rd Federal Tax Enforcement Court of São Paulo, on June 3, 2022, in the proceedings for the annulment of an administrative act, the Judiciary understood, inaudita altera pars, for the granting of the request for urgent relief to suspend the enforceability of the debt established in the Tax Debt Certificate, which is the subject of Tax Enforcement Proceedings.
The company – an operator in foreign trade – sought a court order to suspend, in summary proceedings, the enforceability of the aforementioned debt, as well as any negative effects arising therefrom.
Regarding the law, the company sought recognition of the statute of limitations for the credit in question, since the competent Administrative Authority remained inactive for approximately 7 (seven) years during the course of the tax administrative process, failing to fulfill the supervisory duty incumbent upon it within its responsibilities in foreign trade.
Thus, still within the context of analyzing the preliminary injunction, the Honorable Judge acknowledged a quo that the administrative tax process remained pending judgment on the administrative defense presented by the taxpayer for more than 3 (three) years, thus characterizing the probability of the Plaintiff's right.
Furthermore, the danger of harm to the useful outcome of the process was also recognized, evidenced by the existence of an ongoing Tax Enforcement proceeding – which is pending service of process on the defendant, a fact that could cause irreversible damage to the company.
Finally, the Judiciary granted the preliminary injunction to suspend the enforceability of the non-tax debt embodied in the Tax Debt Certificate (CDA), which is the subject of the Tax Enforcement Proceedings.
This demonstrates that foreign trade operators must be supported by a specialized legal team to ensure they have the necessary backing to uphold their rights, since, often, even when they strive to conduct their business activities in accordance with current legislation, they may be surprised by abusive conduct adopted by the Administrative Authority.
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Decision commented on by Gian Lucca Jorri, Lawyer, graduated in Law in 2016 from the Catholic University of Santos / SP, specializing in Customs and Tax Law. OAB/SP No. 404.759
