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Minister Gurgel de Farias, of the Superior Court of Justice. Credit: STJ/ASCOM

Decision of the 1st Panel of the Superior Court of Justice (STJ) reaffirmed that the transfer of a family property from a debtor to his son does not constitute an attempted tax enforcement fraud. Reporting minister Gurgel de Faria, in his vote, mentioned that even in cases where there was alienation on the part of the debtor, it is not possible to rule out the unseizability of the family asset, as established by Law 8,009, of 1990.

 

The case in question involves a man who transferred the property in which the family lives into his son's name after being cited in a tax enforcement process opened by the Union. In the first instance, the property's legal unseizability was maintained.

 

In the Federal Regional Court of the 2nd Region (TRF2), the understanding was different. As the debtor donated the property after the tax foreclosure summons, the judges understood that the property's unseizability should be removed because “such protection is not justified when the donor seeks to shield his assets within his own family through the free donation of his assets to his descendant, with the aim of defrauding the execution.”

 

 

At the STJ, Minister Gurgel de Farias, in a monocratic decision, voted to make the property unseizable. The minister highlighted that both groups

members of the First Section of the Court established the thesis that, even if the debtor sells his family's residential property, the clause of

unseizability, “because the property in question would be immune to the effects of execution, there being no talk of execution fraud in this kind”.

 

The Treasury appealed the decision, but the 1st Panel, unanimously, followed the rapporteur's vote in a virtual session held between September 12th and 18th of this year.

 

The case was processed in AREsp 2,174,427