MIL OSI Translation. Region: English / Latin America –
Source: Republic of Brazil 2
Tax enforcement does not depend on previous out-of-court protest
Posted: 11/28/2018 – Last updated at: 18:18:22
The Federal Attorney General’s Office (AGU) has ensured that three judicial claims in favor of federal public authorities would normally take place without the necessity of protesting the debt in a notary’s office. In the lawsuits, the federal prosecutors have confirmed that the recovery of the debt in court is an independent act of the public administration protected by law. The tax foreclosures were filed by the Federal Prosecutor’s Office of the 1st Region (PRF1) on behalf of the National Institute of Metrology, Quality and Technology (Inmetro), National Land Transport Agency (ANTT) and National Department of Mineral Production (DNPM). The actions refer to the collection of amounts that individuals and legal entities failed to pay to municipalities, such as fees and fines. In the three actions, magistrates of first instance determined the compulsory extrajudicial protest of the Certificates of Active Debt (CDAs) in a notary, under the justification that there could be a suspension of proceedings and the beginning of the counting of the prescriptive period if the procedure was not carried out. However, federal prosecutors filed appeals, arguing that CDAs protest was not an obligation of the Public Treasury, but a mere option . “Therefore, since it is not an imposition, its realization can not be considered a prerequisite for filing or even prosecuting.” Federal prosecutors pointed out that it was not necessary to protest the Certificate of Active Debt in a notary’s office, although Law No. 9,492 / 1997, as amended by Law No. 12,767 / 2012, has admitted the procedure. In this way, the federal prosecutors have pointed out that, in order to file a tax deed, the active debt certificate need not be accompanied by proof of According to this, the action, according to the AGU, would only need to be instructed after being duly registered as an active debt of the debt and issuance of CDA, as determined by Law No. 6.830 / 80, considering that this executive title is endowed with the presumption of legitimacy, resulting from a constitutional administrative procedure, ensuring the adversarial and In addition, federal prosecutors have stated that the requirement of extrajudicial procedure not imposed by law, as ordered by lower court decisions, has violated the principles of separation of powers, the inability of the Judiciary and, in particular, the principle of efficiency. “Before the filing of any tax execution there is a constitutional administrative process, where in the end, the administered is notified to pay. After that, the debtor still has his name inserted in the CADIN “, so that” would be an uneconomical act, in the existence of judicial tax execution, often in advanced procedural state, suspend it or even extinguish it to back up to “According to the AGU’s arguments, Federal Judge Novély Vilanova da Silva Reis, who has filed a complaint against the federal court, has granted appeals to reform aggravated decisions, determining whether to carry out tax executions regardless of protest The decision acknowledged that “there is no need for a prior out-of-court protest by CDA to continue prosecution” and that “this is a faculty of Public Administration under the terms of Law 9.492 / 1997.” PRF1 is a unit of the Attorney General’s Office Federal, agency of the AGU.Ref .: Proceedings nº 1030980-15.2018.4.01.0000, nº 1031118-79.2018.4.01.0000 and nº 1031293-73.2018.4.01.0000.
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