PGFN publishes new order for registration in the Active Debt of the Union and Fiscal Execution

The National Treasury General Attorney (PGFN) published Ordinance 33/2018, on Feb-02-2018, which regulates Article 20-B and 20-C of Law 10,522/2002 and deals with procedures to send debts for enrollment in the Active Debt (DAU) purposes, as well as establishing the criteria for review applications of registered debt, for the advance offer of assets and rights to attachment and for a selective filing of fiscal foreclosures.

Among the points established by the ordinance, which will be effective after 120 days from its publication, we may highlight:

1) The debts legality control sent to the Active Debt is to be analyzed by the National Treasury General Attorney (PGFN), in certainty, liquidity, and enforceability requirements, essential for the executive deed formation required to practice any coercive collection act, whether judicial or extrajudicial. In the event that there are defects preventing from enrollment into a Federal Government active debt, the National Treasury Attorney shall return the debit to the origin agency, with no registration, for correction purposes.

2) When the enrollment in the DAU occurs, the taxpayer will be noticed to pay the debt within five (5) days or present a guarantee in advance in Tax Enforcement or Request for Revision of Registered Debt (Pedido de Revisão de Dívida Inscrita - “PRDI”), whose deadlines are 10 days counted from notification.

3) The debtor notified to pay the debit registered in the DAU may anticipate the guarantee offer in tax execution, in the following modalities:

• Cash deposit for security purposes;
• Insurance-guarantee policy or bank guarantee letter that is in compliance with the regulations of the Attorney General of the National Treasury;
• Any other assets or rights subject to public registration, subject to arrest or attachment, respecting the preference order.

It is noteworthy that the guarantee advance offer acceptance in tax execution does not suspend the requirement of credits registered in active debt, but it makes possible the issuance of tax regularity certificate, provided that in sufficient amount for full guarantee of the debts guaranteed with all legal additions .

After acceptance of the offer, the Attorney of the National Treasury will promote the filing of the corresponding tax enforcement, indicating to the attachment the asset, or right offered by the debtor, within a thirty-day maximum period.

4) The (PRDI) makes possible the National Treasury General Attorney re-review the requirements for liquidity, certainty and enforceability of debits registered in active debit, of a tax or non-tax nature, being admitted in cases of claim of:

• Payment, installment, suspension of requirement under judicial decision, offset, correction of statement, filling the statement inaccurately, formal defect in the credit constitution, decay or prescription, when occur prior to the active debt enrollment;
• Issues related to situations where the active debt enrollment is prohibited, before or after its enrollment;
• Any extinction or suspension cause of tax or non-tax credit occurring before or after being enrolled in an active debt.

The PRDI will suspend the coercion acts practice for debt collection, however, it will not suspend the demandability of the debts; and will be analyzed within thirty (30) days from the first working day after its registration at PGFN e-CAC .

5) Pre-excerpted registration forecast with annotation at registry agencies of assets and rights subject to arrest or attachment the existence of debt subscribed in active debt, for third parties acknowledgement, in order to prevent from fraud to execution.

Once the active debt certificate has been registered at registry agencies of assets and rights, the debtor should be notified to file a challenge within 10 days, by filing the allegations at PGFN e-CAC.

6) The fiscal foreclosures filing is conditioned to the location of evidences of debtor’s or co-responsible debtor’s assets, rights or economic activity, and that are useful to meet a full or partial debt payment.