The Ordinance No. 33/18 of PGFN and the possibility of administrative attachment

POR: Otávio Alfieri Albrecht

Andressa Martins de Souza

Law 10,522, dated July 19, 2002, which provides for the Information Register of unpaid credits of federal agencies and entities and provides other measures, at the beginning of this year, has received new regulations through PGFN Ordinance No. 33/18, specifically with respect to Articles 20-B and 20-C of Law 10,522 of July 19, 2002.

PGFN Ordinance No. 33/18 regulates the procedures for the routing of debts for the purposes of enrolling in active debt of the Union, as well as establishes the criteria for submitting applications for review of registered debt, for the early offer of assets and rights to seizure and for the selective filing of fiscal foreclosures.

As a result of the new regulations, the taxpayers will be summoned to pay or install the debt, in up to 5 (five) days; and or make an Advance Offer of guarantee, or submit Request for Revision, within 10 (ten) days.

The new rules will only apply after 120 (one hundred and twenty) days of the publication of Ordinance No. 33/18 of PGFN, for the taxpayers enrolled in Active Debt after the aforementioned term.

It should be noted that if there is a refusal by the Taxpayer to pay the debt, in the absence of an Advance guarantee offer or a Request for Revision, the Attorney General of the National Treasury may adopt restrictive measures to the business activities, such as application for cancellation of tax benefits, as of contracts with the Public Power; representation to the IRS to apply a fine in the distribution of dividends (as applicable); or execution of the so-called “pre-executory registration” of the taxpayer’s assets.

It deserves attention the administrative garnishment modality, called “pre-executory registration,” since this consists in registering the certificate of active debt in the organs of registration of goods and rights subject to arrest or attachment, rendering them unavailable.

The pre-executory registration, set forth in Ordinance No. 33/18 of PGFN, aims to prevent execution fraud and includes assets of individuals and non-current assets of legal entities, all subject to public registration, prioritizing real estate.

Although the rules of Ordinance No. 33/18 of PGFN are not yet applicable, it is important to note that there are already three direct actions of unconstitutionality (ADIN Nos. 5,881, 5,886 and 5,890) filed to discuss the constitutionality of Article 25 of Law 13606 / 2018, in the part that granted the right to the National Treasury to unilaterally make taxpayers’ assets unavailable, by simply registering the certificate of active debt in the registry of assets and rights subject to arrest and attachment. In case the Federal Supreme Court adjudicates one of these actions, at least the part of Ordinance No. 33/18 of PGFN regarding the procedure of pre-executory registration of the registration in active debt will be considered as unconstitutional and, consequently, without effects.

Lastly, the Palópoli & Albrecht Advogados Tax team advises taxpayers to pay attention to the possibility of registering tax debts in Active Debt, with the proviso that said established procedures take effect only after 120 (one hundred and twenty) days of date of publication of Ordinance No. 33/2018, thus not affecting debtors who are already or will be enrolled in the outstanding debt until mid-June 2018.