Stock is accepted as collateral in foreclosure

A chemical company got the goods of its stock were accepted as collateral in a State tax lien. The first Stick of Exchequer of Camaçari (BA) followed the company''s argument that the product offered has liquidity and that it would have difficulty, due to the financial crisis, in obtaining a surety bond, one of the features supported by the Irs. Decision rekindles an old thread in the judiciary. Well accepted in the decades of 80 and 90, the companies '' stocks have been vetoed in the courts due to the difficulty of the Irs in getting the resources at the end of the running processes.
The current case law – adopted by the Superior Court of Justice (STJ) and replicated on the Judiciary of the States-the principle of less onerous to the debtor should be in the background. The Ministers come from understanding that the objective, in foreclosure, is to ensure the payment of the debt. So, the preference for cash guarantee, through legal deposit or insurance and bank guarantee.
At first, the judge in the case, Cesar Augusto Borges de Andrade, denied the company''s stock as collateral for debt. Then, by analyzing injury brought by the company, reformed the decision. He considered the possibility of commercialization of the products offered. It is, in the case of raw material for fertilizers.
Company representative in the case, lawyer Mark pepper, a partner at the law firm, Pepper says that to convince the judge of the liquidity of the product, they joined to process a list of buyers of the raw material and also reports that highlighted the forecast of an increase of the values of the input between 3% and 5% for this year. The discussion on Justice involves 12,000,000 R$ in alleged debts of GST. "In the current economic scenario, talk about money to offer as collateral is impossible. The second option is to seek bank guarantee or surety bond, which has cost up to 7% of the total value, "says the lawyer Marcos Pimenta. "This decision does not bring prejudice to the financial health of the company and enables it to discuss the legitimacy of the collection," he adds.
The lawyer Marcelo Annunziata, Demarest, says that, in the midst of economic crisis, companies have tried alternatives to ensure the tax demands. He cites the case of a customer who had accepted the assurance in a Trust Fund quotas. "It was a fixed income fund, with income for the Selic," he says. The process, in this case, ran on the Justice of São Paulo. Another option is to leverage ICMS credits. The lawyer cites as an example the case of exporting companies, which accumulate input and credit, on sale, are exempt. "The taxpayer cannot compensate for ICMS credit with other taxes, have to use on own account of GST. So if the company has and the IRS does not question the legitimacy of this claim, she may give in guarantee a tax foreclosure "means Annunziata.
Sought, the Attorney General of the State of Bahia does not return until the closure of the issue.