A (im)possibilidade de a fazenda pública requerer a falência do devedor de créditos tributários: uma análise da evolução legislativa desde o decreto-lei nº 7.661 de 1945 até a atualidade

Abstract

The objective of the study was to support a theoretical orientation about the possibility of the bankruptcy process being initiated by the Treasury, due to tax debts not paid by the debtor businessman or business company. The subject has been disagreed because of the shortcomings in bankruptcy legislation. Decree-Law No. 7,661 of 1945, in its Article 9, III, conferred generic legitimacy to the creditor, without bringing any different treatment when the credit holder was the estate agent. The relapse was maintained with the advent of Law No. 11,101 of 2005, which established, in article 97, IV, that any creditor could indistinctly postulate the debtor's breach, provided that the objective assumptions underlying the request for breach were verified. In order to fill the persistent normative gap, research was conducted on regulatory normative diplomas on the judicial collection of credits of the Public Treasury registered in active debt, especially Decree-Law No. 960 of 1938 and Law No. 6,830 of 1980. Lessons were also used of the scholars who dealt with the subject, and positions were taken both in terms of the possibility of handling the bankruptcy instrument by the tax authorities, and in the sense of impossibility. For the defenders of the first stream, the rules contained in the diplomas governing the fiscal executive procedure, by establishing the unaltered tax credit to the creditors competition, would have conveyed not a restriction to the public entity, but a privilege, so that it could Finance freely choose between foreclosure and bankruptcy foreclosure. For those affiliated to the thesis of the impossibility of using the bankruptcy way, arguments were raised that the national legislation would have subjected the judicial discussion of the farm credits to the scrutiny of the fiscal executive process, with a clear incompatibility between this and the bankruptcy process. Moreover, the tax authorities would lack the interest to postulate the debtor's bankruptcy, since it would already have at its disposal, for the satisfaction of its credit, a much less burdensome procedure to the executed. To the analytical collation of the theses was added the examination of judgments of the Superior Court of Justice, both under the aegis of Decree-Law No. 7.661 of 1945 and under the prism of bankruptcy law currently in force. The analysis of the fundamentals embodied in such decisions was also accompanied by a reflection on the principle of the social function of the company and its corollary, the dictate of the search for the conservation of business activity. Finally, it was found in the research whether there is or not a procedural interest that would justify the taxpayer's filing for bankruptcy. After all these elements, it was concluded that the prohibition of bankruptcy handling of the bankruptcy filing would be the alternative more in line with the basic principle of the social function of the company, as well as the most reasonable measure from the point of view of satisfaction of the bank public credit as under the adoption of a less severe judicial means to the debtor.