The First Section of the Superior Court of Justice (STJ), in ruling on REsp No. 2,193,673/SC under the repetitive appeals procedure (Theme 1385), established a precedent of significant practical relevance for tax litigation: the Public Treasury may not unjustifiably refuse a bank guarantee or surety bond offered by the taxpayer to secure tax enforcement proceedings, merely on the grounds that cash attachment has priority.
The case, reported by Justice Maria Thereza de Assis Moura, included a concurring opinion by Justice Benedito Gonçalves, who fully supported the reporting justice’s position. The dispute involved the Municipality of Joinville and Sociedade de Educação Superior e Cultura Brasil S.A., but the legal thesis established has nationwide applicability, binding other judicial bodies in similar cases.
The Treasury argued that cash occupies a priority position in the statutory order of assets subject to attachment, and therefore it could require seizure of cash while refusing other forms of guarantee. The STJ rejected this interpretation. The Court emphasized that Law No. 6,830/1980 (the Tax Enforcement Law) expressly allows the use of bank guarantees and surety bonds as valid means to secure enforcement proceedings.
According to the First Section, these instruments are capable of ensuring the liquidity and security of the tax claim, and it is therefore illegitimate to refuse them solely based on an abstract invocation of the statutory order of preference. The requirement for cash attachment cannot automatically prevail over other legally authorized guarantees, particularly when those guarantees provide equivalent protection to the enforced claim.
The precedent also harmonizes the understanding previously established in Theme 1203, which addressed non-tax claims, thereby promoting jurisprudential coherence and greater predictability in enforcement proceedings.
From a practical perspective, the impact is significant. The decision reinforces the principle of the least burdensome enforcement and prevents the immobilization of financial resources that could compromise companies’ working capital. In a context of high levels of tax litigation and frequent asset freezes through the SISBAJUD system, the consolidation of this thesis strengthens the possibility of strategic management of tax liabilities, allowing taxpayers to offer effective guarantees without sacrificing corporate liquidity.
This does not eliminate the prerogatives of the Public Treasury, but rather requires concrete justification for any refusal. If there is insufficiency, irregularity, or a real risk to the satisfaction of the claim, the rejection may be duly justified. What the STJ rejects is automatic and generic refusal.
Theme 1385, therefore, represents an important step forward in terms of legal certainty and economic rationality in tax enforcement proceedings, reinforcing the need to balance effective tax collection with the preservation of business activity.