Debtor defense · SPD Advocacia
Named in your company tax enforcement action? A partner is liable only in situations defined by the STJ
The tax debt belongs to the company. A partner can only be pursued in specific situations, and the STJ (Brazil's Superior Court of Justice) has set who is liable when the company closes irregularly. Old cases that have stalled may also be time-barred.
General rule
Nonpayment is not enough
Under STJ Súmula 430 (a summary of the court's settled case law), the company's failure to pay a tax obligation does not, by itself, make the managing partner jointly liable. Súmula 435 presumes that a company was irregularly dissolved when it stops operating at its tax domicile without notifying the competent authorities, which allows the enforcement to be redirected to the managing partner.
Irregular dissolution
Who is liable: Temas 981 and 962
Tema 981. A redirection based on irregular dissolution may reach the partner, or the non-partner third party with management powers, at the date the dissolution occurred or is presumed to have occurred, even if that person was not a manager when the taxable event took place (REsp 1.645.333/SP, decided on May 25, 2022).
Tema 962. The redirection cannot reach a person who, although a manager at the time of the taxable event, acted without exceeding their powers or breaching the law or the articles of association, left the company regularly and did not cause the later irregular dissolution (REsp 1.377.019/SP, decided on November 24, 2021). The PGFN (the National Treasury's attorney office) added this topic to its list of matters it is released from contesting and appealing (Parecer SEI 6194/2022).
Limitation and security
Stalled cases and surety insurance
Under STJ Tema 566 (REsp 1.340.553/RS), the one-year suspension period starts automatically when the tax authority learns that the debtor or the assets were not found. After that year, the intercurrent limitation period (prescrição intercorrente) runs automatically, and only actual service of process or actual seizure of assets interrupts it. Law 6,830/1980, art. 40, § 4º, allows the judge to recognize the limitation on the court's own motion, after hearing the tax authority.
When the defense requires security, art. 9º, § 7º, of the same law provides that surety insurance (seguro garantia) and bank guarantees may only be enforced after a final, unappealable merits decision against the taxpayer.
Requirements
What we review
Taxes, periods and co-obligors.
Dates of entry, exit and management.
Closure, change of address or of activity.
Time stalled and attempts at service and seizure.
Source: STJ, Súmulas 430 and 435; Temas 962, 981 and 566; Parecer SEI 6194/2022/PGFN; Lei 6.830/1980, arts. 9º, § 7º, and 40, § 4º.
What is your case?
Situations the firm handles
Left the company before it closed
Exclusion under Tema 962.
STJ, Tema 962Partner without management powers
Defense based on lack of powers at the dissolution.
STJ, Tema 981Pursued only because the company did not pay
Súmula 430.
STJ, Súmula 430Old enforcement with no assets found
Intercurrent limitation.
STJ, Tema 566Partner bank account frozen
Pre-enforcement objection (exceção de pré-executividade) or embargos (formal defense to the enforcement).
Case reviewNeed to post security in court
Surety insurance without early enforcement.
LEF, art. 9º, § 7ºStep by step
How the firm works
- Review. CDA, articles of association, amendments and case progress.
- Defense. Pre-enforcement objection, embargos or request to remove the partner.
- Release. Request to release funds and assets, when applicable.
- Follow-up. Appeals until the final decision.
Case review
Let us review your defense
Answer the questions, one at a time. At the end you can attach documents, which go straight to a folder in the firm's Drive, and send the summary via WhatsApp. Everything is protected by attorney-client confidentiality.
Common questions
Frequently asked questions
Is a partner liable for any company debt?
No. Under STJ Súmula 430, nonpayment alone does not make the managing partner liable.
I left the company before it closed. Can I be pursued?
Under Tema 962, a person who left regularly and did not cause the irregular dissolution is not liable under a redirection based on that dissolution.
The case has been stalled for years. Could it be time-barred?
It could. STJ Tema 566 defines when the suspension and the intercurrent limitation period begin. The case history needs to be reviewed.
Do you serve companies in other states?
Yes. We work throughout Brazil, with electronic case files and online meetings.
How does engagement work?
After the review, the firm sends a written fee proposal before any engagement.
Lawyer for partners named in tax enforcement actions
SPD Advocacia, based in Anápolis-GO, defends partners, former partners and managers named in tax enforcement actions brought by the Federal Government, states and municipalities throughout Brazil, and also serves clients abroad.
STJ Temas 962 and 981
They define who is liable when the enforcement is redirected because of the company's irregular dissolution.
Intercurrent limitation
STJ Tema 566 defines when the suspension and the limitation period begin in stalled cases.
Informational content, in accordance with OAB (Brazilian Bar) Provision 205/2021. Each case depends on a review of the documents, and no result is promised.