Da (des)necessidade de apresentação de certidão de regularidade fiscal para instauração de recuperação judicial: uma análise da evolução da jurisprudência do STJ

Abstract

This work aims to analyze the possibility of initiating judicial reorganization proceedings without requiring proof of tax compliance (through negative certificates or positive certificates with the effect of negative ones), in light of Article 57 of Law No. 11,101/2005 — which explicitly establishes such a requirement — and in accordance with Article 191-A of the National Tax Code, which mandates proof of settlement of all tax obligations. To this end, it presents a concise overview of the concepts and general characteristics of judicial reorganization, as well as of Tax Law, with particular focus on tax installment programs and tax compliance certificates. The study then addresses the conflict between business preservation and the overriding public interest in tax regularity, highlighting the well-known doctrinal divergence on the matter. Finally, it examines the systematic legal arguments adopted by the Superior Court of Justice since 2013 — controversial interpretations that depart from the literal meaning of the law in favor of the principle of business preservation, claiming to reveal the “true scope of the norm” — and traces the evolution of these interpretations in light of subsequent legislative developments.