STJ suspends early settlement of Oi

The newspaper Valor Econômico reported that the Superior Court of Justice suspended the early settlement of the guarantee against the company Oi in a collection process brought by the Tax Authorities. The 2nd panel of the STJ understood that the withdrawal of amounts cannot occur due to an ongoing tax transaction with the PGFN to pay the tax debt that is the subject of discussion. Dr. Donovan Mazza Lessa, partner at Maneira Advogados, was interviewed to comment on the topic.

STJ suspends early settlement of Oi

Ministers considered an ongoing tax transaction between the company and the Attorney General of the National Treasury

By Marcela Villar — From São Paulo

The 2nd Panel of the Superior Court of Justice (STJ) suspended the early settlement of the guarantee against the telecommunications company Oi in a collection process brought by the Tax Authorities. The ministers, unanimously, decided that the collection of amounts could not occur due to an ongoing tax transaction with the Attorney General's Office of the National Treasury (PGFN) to pay the tax debt subject to discussion.

In judicial recovery, Oi has a debt of R$45 billion. If early settlement were allowed, the amounts that guarantee eventual settlement of the debt under discussion would go directly to the Treasury, before the end of the process (final and unappealable).

The 2nd Panel considered that one of the requirements of the agreement being negotiated with the PGFN was to maintain the current guarantees and the suspension of tax enforcement itself. Therefore, it was not in PGFN's own interest to raise the guarantee amounts before the action became final, as the debt is being paid through the transaction installments.

In part, the decision of the 2nd Panel is in the same direction as the ruling of the 1st Panel, in favor of taxpayers. Last month, the 1st Panel changed the jurisprudence and, by majority vote, denied the settlement of the guarantee insurance offered by a company that discussed the tax debt in the Judiciary. On that occasion, the ministers considered the legislative change brought about by Law No. 14,689/2023, known as the Tax Appeals Administration Council Law (Carf), which prohibited settlement before a definitive decision.

In practice, however, the decision of the 2nd Panel allows PGFN to liquidate the guarantee in advance if, for example, there is non-compliance with any clause of the transaction – contrary to what the law says today.

It also bothered some lawyers that the ruling of the 2nd Panel, written by reporting minister Francisco Falcão, did not mention the new Carf Law. "It is not the transaction that prevents early settlement, it is the will of the legislator. The law in force says that settlement cannot be made at any time until the final judgment is reached", says tax specialist Nina Pencak, partner at the firm Mannrich e Vasconcelos Advogados.

Lawyer Donovan Mazza Lessa, partner at Maneira Advogados, says that the decision is unprecedented precisely because the topic of the Carf Law was not addressed. He highlights, however, that liquidation before a final decision brings many losses to the taxpayer. “When there is early settlement, it is necessary to transform the guarantee into cash, but high costs have already been incurred to contract the guarantee”, he says. "It doesn't make sense to deposit. If insurance or guarantee has already been offered, there is no risk of insolvency in relation to the debt executed", he argues.

When analyzing the merits, Minister Francisco Falcão had voted in favor of the Treasury, allowing early settlement – but the tax transaction had not yet been signed (REsp nº 2022608). However, Oi accepted an appeal to remedy the obscurity regarding the ongoing transaction.

In the company's motion for declaration, the minister says that “the right of the National Treasury regarding such liquidation remains affirmed, although, for now, in the specific case, as stated by the creditor herself in the original documents, there is no factual circumstance that legitimizes the interest in such liquidation”.

For tax lawyer Luiz Fernando Sachet, from Marchiori, Sachet, Barros & Dias Advogados, who represented Oi in the case, the ruling ignoring the mention of new legislation is not a problem. "In theory, the PGFN can carry out the settlement if the transaction is disrespected. But the settlement would not be carried out, because the execution judge would examine the case and would, most likely, apply the new law", he states. Lawyer Catiani Rossi, from the same office, also acted for the company in the process.

According to Sachet, there is no interest now in a new appeal to include the new legislation in the ruling, but that will still be up to Oi to decide. "Reiterating merely formal appeals is dangerous and runs the risk of fines being imposed. Ministers are increasingly diligent in penalizing", he adds. In the motion for clarification, the company also mentioned that early liquidation could harm compliance with the judicial recovery plan.

The PGFN appeal reached the STJ in August 2022 after the Federal Regional Court of the 2nd Region (TRF-2) ruled in favor of the telecommunications company. In the ruling, the rapporteur federal judge, Ferreira Neves, reformed a sentence from the 6th Federal Tax Execution Court of Rio de Janeiro that determined the withdrawal of the debt. Neves indicated that the jurisprudence of the TRF-2 is for liquidation after the final and unappealable decision, as stated in the Tax Execution Law, and that liquidating in advance “imposes unnecessary harm to the debtor, violating the principle of least onerousness”.

The PGFN appealed to the STJ and obtained victory in a first decision, in September 2022. Minister Falcão allowed the liquidation of a letter of guarantee, “as long as there is the exception that the withdrawal of the deposit made by the guarantor is subject to the final and unappealable decision”, as was the jurisprudence of the STJ at the time.

In a first attempt to reverse this decision, Oi filed an internal appeal asking for a “distinguishment” of the case due to the company being in judicial recovery and being in negotiations with the Treasury to make a transaction. It was denied again, in a decision in March 2023. It filed a motion for declaration informing formal adherence to the transaction program with PGFN, which has now been analyzed by the Court. Ministers Herman Benjamin, Mauro Campbell Marques and Afrânio Vilela accompanied the rapporteur.

When contacted, Oi declined to comment. PGFN did not respond until the closing of this edition.

https://valor.globo.com/legislacao/noticia/2024/03/21/stj-suspende-liquidacao-antecipada-da-oi.ghtml