Stare decisis (precedent) in Portuguese is “súmula”, a word derived from the Latin summa, which means synthesis. It is nothing more than a summary that consolidates the understanding and redirects the judgments of a Court regarding a given topic. By publishing a precedent, resulting from repeated decisions handed down in the same sense, the courts standardize the judgment of the topic to which it refers, bringing agility to litigation and predictability to the parties – who, in theory, already know what the outcome of their lawsuit in that court will be.
Among the 16 new precedents recently published by the Administrative Council of Tax Appeals (Carf), one that caught our attention was Summary No. 210, which presumes the joint liability of companies in the same group for social security obligations without the need for the Tax Authorities to demonstrate a common interest between them in establishing these obligations.
This means that, in the judgment of appeals in federal administrative proceedings that deal with social security debts, if only the formation of an economic group is found, the member companies will be jointly liable for the debts, even if there is no common interest, and the Tax Authorities may collect the full debt separately from any of them.
However, this understanding go in the opposite direction of the case law established by the Superior Courts.
Although the Carf is the last administrative instance, taxpayers can still take their cases to judicial courts for judgment where the thesis on the subject of joint liability of economic groups is different.
According to the decisions on the subject of the Superior Court of Justice (STJ) – the court responsible for standardizing case law on the interpretation of federal legislation –, in the case of enforcement of collection of tax debts, the mere fact of the formation of an economic group does not automatically lead to joint liability provided for in article 124 of the National Tax Code (CTN).
The basis is in the CTN, which provides for joint liability of tax obligations only in cases provided for by law or in the case of a common interest in the event giving rise to the obligation. In this sense, it is not just because two or more companies make up an economic group that they have the same interest.
The term “common interest” used by the CTN is not related to the economic benefit of the event giving rise to the obligation, but rather to a joint action – which is not the case with social security debts, since they are linked to the actions of different companies, even if they are part of the same group. The “common interest” for recognition of this joint liability must arise from a legal situation in which two or more companies act jointly in carrying out the event giving rise to the obligation and taking advantage of it, as is the case of two people owning the same property and being jointly liable for paying the real property tax – IPTU.
Although this is a different case, it is also worth mentioning the understanding established by the Federal Supreme Court (STF), in the judgment of a repetitive appeal that gave rise to Theme No. 13, to the effect that social security debts cannot be redirected to the company’s partner, precisely because the liability of a third party depends on the fulfillment of legal requirements.
In view of this contradiction in positions, doubts remain about the applicability of the recent Carf Precedent No. 210.
It seems that the final word on the subject will continue to be with the Higher Courts, which still require proof of common interest in order for an economic group to be held jointly and severally liable. If the objective of the precedents is to facilitate the judgment and reduce litigation, it is contradictory that the Carf issued Summary No. 210 in disagreement with the case law of the Higher Courts and, to a certain extent, even with the CTN. Now, the search for a favorable outcome in these cases has faced yet another obstacle, which will probably have to be taken to court. And where does this leave the savings on litigation?