The ministers of the 2nd Panel of the Superior Court of Justice (STJ) unanimously decided not to judge the special appeal of a transport company and, with that, upheld a decision of the Court of Justice of the Federal District and Territories (TJDFT) that dismissed the intervening prescription in a tax execution promoted by the Federal District against this company. With that, in practice, the Public Treasury of the Federal District can continue with the collection acts.
Intercurrent prescription occurs when, after the citation, the tax execution is paralyzed for five years due to the exclusive inertia of the claimant, in this case the Federal District.
In the trial, held last Tuesday (22/3), the ministers granted an internal appeal by the National Treasury, not to hear the special appeal of the transport company. The Treasury claimed that the company's appeal could not be judged because it would require a reexamination of evidence, which is prohibited by Summary 7 of the STJ. This is AgInt in REsp 1818595/DF.
In this specific case, the process was stalled for nine years. After a request from the Treasury in 2000 to auction the seized property, the process only started moving again in 2009.
The TJDFT understood, however, that there was inertia on the part of the Judiciary, and not on the part of the Public Treasury of the Federal District. Therefore, for the court of origin, it is not possible to speak of intervening prescription.
“In this case, there was no negligence on the part of the Public Treasury, since the case was paralyzed due to the slowness of the Judiciary in giving official impetus to the case, after the request for the auction of the seized property”, decided the TJDFT.
Before Tuesday's trial, the rapporteur, Justice Mauro Campbell, through a single judge decision, granted the carrier's appeal, concluding that the intervening statute of limitations had expired. In the decision, the rapporteur stated that it would not be "even reasonable to conclude, as the Court of origin did, that the Federal District acted in a specific manner to see the seized property auctioned off."
“While it is true that there was negligence in the conduct of the procedural acts by the judicial body, it is legitimate to state, on the other hand, that the claimant allowed the process to remain paralyzed for a long period of time without expressing any opinion in the meantime,” wrote Campbell, in the single judge decision.
On Tuesday, however, when ruling on an internal appeal filed by the Federal District Public Treasury, the rapporteur understood that reforming the TJDFT decision would involve re-analysis of evidence. In addition, Campbell also cited Summary 106 of the STJ. According to this statement, “if the action is filed within the period set for its exercise, the delay in citation, for reasons inherent to the mechanism of Justice, does not justify accepting the argument of prescription or forfeiture”.
“By virtue of Summary 106, the prescription of the tax enforcement claim due to the passage of time is a consequence of the creditor’s inertia, which does not occur when the inertia is solely that of the Judiciary”, said Minister Mauro Campbell.
Attorney Flávia Marangoni, who represents the company Taimar Transportadora Agro Industrial, said that she will file a statement of clarification against the decision. She argues that, in two lawsuits involving companies from the same family and which were originally processed together, the STJ understood that the intervening prescription was recognized. These are Resp 1572020/DF and 1,594,866/DF.
“It is clear to me that there was also inertia on the part of the Federal District Public Treasury, which did not move the process forward and went 11 years without filing a petition. And precedents in similar cases recognize the completion of the intervening prescription,” says Flávia.