Insolvência empresarial e a fazenda pública: um enfoque sob o prisma da recuperação judicial e da realidade

Abstract

The exclusion of tax credits from the judicial reorganization process is incompatible with the current legal system, particularly with the constitutional and factual elements that comprise it. Insolvency law in Brazil has undergone profound innovation due to the evolution of commercial relations, market demands, and especially the complexity of business crises. However, the non-inclusion of the Public Treasury in the business recovery procedure represents a shortsighted view, as it considers an individualistic normative position, strongly supported by the premise of the supremacy of the public interest, which might have been compatible with the 1967 Federal Constitution, but not with the current one. This constitutes a theoretical legal model dissociated from current reality. The legal system must be analyzed in conjunction with all its elements. It is necessary to see the forest, not just the trees, including from a sustainable perspective on tax transactions. The methodology adopted was deductive, with bibliographic and documentary research, including the analysis of specialized doctrine, legislation, jurisprudence of the Superior Court of Justice (STJ) and the Supreme Federal Court (STF), in addition to empirical data on public treasury credits. The research results revealed that the criteria or formal justifications for tax exclusion are not factually and legally sustainable. It is important to highlight, at this point, that the enactment of a supplementary law to regulate the subject is unnecessary. It was also found that the exclusion constitutes a violation of the constitutional principle of material equality and an abuse of legislative power. When analyzing the jurisprudential evolution regarding the requirement of negative tax debt certificates for the approval of the plan, it was verified that the delay of the Judiciary in demanding tax regularization postponed the resolution of large liabilities, weakening recovery efforts. While the original flaw in the legislation of not subjecting the Public Treasury to the effects of judicial reorganization remains unresolved, an intermediate solution is suggested for the "third wave" of the requirement for a tax clearance certificate for the purposes of judicial reorganization: granting a one-year period for tax regularization after the plan's approval, particularly when the company proves that it has exhausted all available means to obtain installment payments for the tax debt, demonstrating good faith, and the federated entity still fails to do so. Any future absence of said certificate would serve as a resolutive condition of the plan. This solution ensures a balance between conflicting interests, as it allows for the immediate payment of essential services and the continuity of business activity, with the consequent preservation of the social and economic benefits arising therefrom, including tax collection. Furthermore, it does not constitute any prejudice to the Public Treasury, since, if the judicial reorganization is converted into bankruptcy, the payment of labor claims precedes tax claims. In conclusion, it is noteworthy that the insolvency system requires a shift in the underlying rationale, in order to establish a negotiation and collaborative paradigm for the Public Treasury – which is already being carried out through tax transactions – and to find the best solution to overcome the company's crisis, all without harming tax collection or neglecting the need to balance tax liabilities.