Author: LUÍS INÁCIO LUCENA ADAMS

Source: O Globo, 30/04/2009

I recently participated in an interesting seminar organized by Instituto Trends, whose theme was Law and Economics. He proposed the dialogue between these two important specialties of thought and technique as indispensable, aimed, ultimately, at achieving legal and economic security. Particularly, in Professor Arnold Wald's lecture, which emphasized efficiency as an important legal paradigm, reference was made to the Goddess of Justice with open eyes, different from the usual way, in which she is blindfolded. Traditional symbology, which is based on the idea of ​​impartiality, has often led the Law to blindness.

Within the scope of tax law, this dynamic has been the subject of discussion, in which the usual tax administration guidelines, which are practically exclusive, of collection, have been replaced by a plurality of concerns and guidelines that incorporate the extra-fiscal aspects of the tax (this is the case of health in cigarette taxation) and the legitimacy of collection processes, with greater respect to the taxpayer, whether he is a debtor or not. This is the case of the Taxpayer Assistance Centers, whose guideline points to the unification of the services currently provided by the Federal Revenue of Brazil and by the Attorney General of the National Treasury.

The duplicity of services was justified by mere administrative convenience; unification serves to rationalize (simplify and reduce bureaucracy) in favor of the taxpayer.

With regard to tax collection, be it executive or friendly, it is essential to change some guidelines that guide the activity of tax administration, in particular the Attorney General's Office.

Thus, when it comes to credit guarantee, in executive collection, disproportionate emphasis has been given to the cash deposit, which, within the scope of the tax authorities, immediately becomes revenue, since the funds enter directly into the account National Treasury, under the terms of Law 9703/98.

Such a procedure ends up generating distortion in the collection, because, on the one hand, it emphasizes the process for debtors who, at least in appearance, are able to make a cash guarantee, in addition to privileging billing liens, and on the other hand it ends up producing a real race in the substitution of guarantees for money, whenever this seems possible, even when those existing in the processes are of excellence and efficient in the interest of the tax authorities, as is the case of bank guarantees or surety bonds.

Within the scope of the National Treasury, Ordinance 644 was recently issued, which establishes rules that guide the acceptance of bank guarantee as a guarantee instrument in the collection of the tax credit, to be observed by all who are part of the organization.

Such regulation, of uniform and mandatory observance, in addition to standardizing the conduct of the attorneys of the National Treasury, seeks to privilege the legal stability that must exist in favor of the economic actors and of society, particularly in those cases in which the debtor has to distribute dividends.

The regulation favors those who, before being urged by the Court to make a cash deposit at the request of the Public Treasury, anticipate the offer of guarantee, in this case bank guarantee.

In this respect, good faith and loyalty in the debtor's conduct are favored, unlike the one who only offers the guarantee when there is no alternative in the face of a judicial decision that determines the deposit of financial resources. With the guarantee offer, the debtor obtains stability in the relationship with the Public Treasury, avoiding actions that aggravate his financial situation and eventual demands for cash deposit.

In addition, the debtor will be able to carry out all normal activities that are essential to its operation without the risk of possible instability in its relationship with the Public Treasury.

Therefore, the regulations incorporated within the scope of the National Treasury allow for more efficient compliance with art. 32 of Law 4.357 / 64 and art. 52 of Law 8.212 / 91, which prevent the distribution of dividends when there is an unsecured debt in favor of the Union, in conjunction with the mandatory distribution guideline of 25% of adjusted profits, pursuant to corporate law (6.404 / 76), until because dividends are the remuneration attributed to the shareholder and resulting from his shareholding.

It should be noted that, in business practice, the distribution of dividends is more important as companies open their capital and start to operate on Stock Exchanges and, in this context, are required to follow different governance practices. corporate relationship between management and shareholders.

For these reasons, the evolution towards a balanced and conflict-free relationship between the Treasury and the taxpayer favors legal certainty, producing the socioeconomic growth that is indispensable to Brazil and, furthermore, it reduces the Brazil cost due to the rationalization of tax administration.

LUÍS INÁCIO LUCENA ADAMS is Attorney General of the National Treasury.