The First Chamber of the Superior Court of Justice reaffirmed, in the judgment of ARESP 2,174,427, that the sale of a property serving as the debtor’s residence and their family does not constitute fraud in tax collection, thereby preserving the immunity of the family property from seizure.
The case in question involved a dispute between the National Treasury and a debtor who, after being notified in a tax collection proceeding, transferred the property to their child. The National Treasury argued that this action amounted to fraud in tax collection, which could potentially negate the protection afforded to the family property.
The immunity of family property from seizure is provided for in Law No. 8,009/1990. This law establishes the conditions under which a residential property is shielded from attachment for the payment of debts, ensuring a safe place for the family’s residence. This protection is supported by the Federal Constitution, which guarantees the right to housing as a fundamental right.
At the trial court level, the judge did not allow the seizure of the property, but the Federal Regional Court of the 2nd Region (TRF2) overturned this decision, arguing that the immunity provided for in Law No. 8,009/1990 should not apply when the debtor seeks to protect their assets by transferring them to a descendant.
The regional federal court of the 2nd region considered that fraud in tax collection was established with the sale of the immovable property after the establishment of the tax liability because it resulted in the disestablishment of the legal protection granted to the family property, taking a stance contrary to the one adopted by the Panels of the First Section of the Superior Court of Justice.
When analyzing the appeal in the STJ, Justice Gurgel de Faria reiterated the understanding that the immunity of family property remains intact even when the debtor transfers the property to third parties. This is because the property in question would be immune from the effects of collection, regardless of the sale.
The justice emphasized that the lower court (TRF2), by removing the protection from the family property due to its sale after the debtor’s notification in the tax collection proceeding, was in disagreement with the STJ’s guidance. Therefore, the appeal was granted to reinstate the original judgment, preserving the immunity of the family property.
Therefore, the transfer of family property to a descendant, even after being notified in a tax collection proceeding, does not constitute fraud in tax collection and preserves the legal protection afforded to this type of property, ensuring the residence of the debtor’s family.
This protection is supported by the Federal Constitution, which guarantees the right to housing as a fundamental right. Thus, family property is imbued with absolute immunity, preventing its expropriation to satisfy the tax liability being pursued in the tax collection proceeding.