ATTENTION: Registration is now open for the ONLINE IMMERSION OF TAX LAW. The IMMERSION is free and 100% online, and will be held on May 3, 5 and 7. REGISTER ➤ https://advocaciatributariadozero.com.br Objections to tax execution Objections are the debtor's natural means of defense in tax execution, having the legal nature of an autonomous action. The taxonomy of an autonomous action of the embargoes, and not of a mere contestation, generates some important consequences: 1) need for the objector to demonstrate fulfillment of procedural assumptions and conditions of the action; 2) existence of an autonomous value of the cause in relation to that of the execution; 3) distribution by dependence on the executive action; 4) the judicial decision that summarily rejects or dismisses the embargoes is a judgment, appealable by appeal. Under the terms of art. 16 of the LEF, the defendant may file an objection within 30 days from the date of the court guarantee, that is: I – from the deposit; II – from the submission of proof of the bank guarantee; III – from the notification of the seizure. This is because objections are not admissible before the execution is guaranteed (art. 16, § 1º). Opposition before the guarantee results in the objection being untimely. Untimely objection should not be confused with untimeliness. An untimely objection is one filed after the end of the legal term. Objections may cover any matter useful to the defense, and the appellant may request evidence and attach documents and a list of witnesses to the case file, up to three, or, at the judge's discretion, up to twice this limit (art. 16, § 2º). Automatic suspensive effect in objections The system traditionally adopted by Law No. 6.830/80 has always favored the understanding that the receipt of the embargoes automatically suspends the tax enforcement. However, as of May 2013, the 1st Section of the Superior Court of Justice gave a new interpretation to art. 739-A of the old CPC (with a corresponding article 919 of the 2015 CPC), extending the private regime of the Code of Civil Procedure to tax cases in order to prohibit the automatic suspensive effect of the embargoes to the tax enforcement. The aforementioned provision establishes: Art. 739-A. The defendant's embargoes shall not have a suspensive effect. § 1 The judge may, at the request of the objecting party, grant a suspensive effect to the embargoes when, their grounds being relevant, the continuation of the enforcement clearly could cause the defendant serious harm that is difficult or uncertain to repair, and provided that the enforcement is already guaranteed by a sufficient seizure, deposit or bond. Therefore, it would be up to the appellant to request the judge to grant a suspensive effect to the embargoes, provided that he proves that the continuation of the execution could cause serious damage that is difficult or uncertain to repair. The Brazilian Bar Association filed a Direct Action of Unconstitutionality (ADIn) with the STF against art. 739-A of the former CPC (art. 919 of the 2015 CPC) on the grounds that the aforementioned rule should not be applied to tax executions because it violates constitutional principles such as reasonableness, proportionality, the right to adversarial proceedings, full defense and due process of law. This is because, in practice, the assets offered as collateral in the tax execution are expropriated before the judgment of the embargoes, that is, without the adversarial proceedings being effective in the process. As is known, general and previous rules (Code of Civil Procedure), in the event of antinomy, do not repeal subsequent special rules (Tax Enforcement Law). This is an incredible mistake made by the Superior Court of Justice. Art. 739-A of the old CPC (art. 919 of the 2015 CPC) is inapplicable to the special procedure for tax enforcement. Pre-enforcement exception The need to secure a court order to lodge an objection to tax enforcement often prevents the debtor from exercising his constitutional right to adversarial proceedings and full defense. In view of this, doctrine and case law have recognized the possibility of the defendant defending himself, without the need to secure a court order, using a pre-enforcement objection or, as it has become more well-known, a pre-enforcement exception. Although there is no express provision in the Tax Enforcement Law, the possibility of its use is based on the constitutional principles of due process of law (art. 5, LIV), adversarial proceedings and full defense (art. 5, LV), in addition to the right to petition itself (art. 5, XXXIV, a). This is a procedural incident, that is, unlike the embargoes, the exception does not have the legal nature of an autonomous action.