The Superior Court of Justice (Superior Tribunal de Justiça - STJ) judged Direct Appeal n. 1.223.792 where the State of Mato Grosso do Sul sought to include the delay penalty in the classification of the credits in the bankruptcy of a company. According to the opinion announced by the Second Panel, in the case of bankruptcy declared during the validity term of Law n. 11.101, the inclusion of the tax fine in the classification of the credits in the bankruptcy, referring to tax credits that took place before such law, did not imply retroactive effect to the detriment of the bankruptcy estate.
The State of Mato Grosso do Sul appealed to STJ from a decision handed down by the local Court of Appeals that considered that article 83 of Law n. 11.101 would apply only to the credits having origin after such law entered into force in June 2005. The article deals with the classification of the bankruptcy credits, among them “the contractual fines and the pecuniary penalties for violation of the penal and administrative laws, including the tax fines”. According to the tax court, if the fine that the state wanted to apply was not due at the time of its origin, Law n. 11.101 could not retroact to reestablish credits prior to its validity term.
In its Direct Appeal, the State of Mato Grosso do Sul alleged that the company had its bankruptcy declared only in 2007, the bankruptcy law applying in full, irrespective of the date when the events that resulted in the obligations took place. The only time mark that could determine the application of the new bankruptcy law would be the effective date when the company´s bankruptcy was declared.
When analyzing the issue, Justice Mauro Campbell Marques, said that Law n. 11.101 does not apply to the bankruptcy proceedings or compositions with creditors filed before its validity, which should be concluded in the terms of Decree-Law n. 7.661/45. Therefore, according to the Justice, the new law, enacted in 2005, would apply to the bankruptcies declared after it entered into force, such as the case being judged, where the company´s bankruptcy was declared in 2007.
Additionally, according to the Justice, article 83, VII, of Law n. 11.101, ensured the charging of a delay penalty with tax nature against the bankrupt estate. Therefore, since this is the legal regime applicable to bankruptcies declared after 2005, including the delay tax penalty does not characterize retroactivity, even if resulting from prior events.
(Direct Appeal n. 1.223.792/MS).