STJ establishes binding precedent on the suspension of the enforceability of non-tax liabilities through surety bonds or bank guarantees

The ruling impacts discussions regarding the suspension of the enforceability of administrative charges

The First Panel of Brazil’s Superior Court of Justice (“STJ”) has established the binding precedent (Special Appeal No. 2,007,865) that offering a bank guarantee or surety bond that covers the reinstated charged amount plus 30% is sufficient to suspend the enforceability of non-tax liabilities.

The unanimous ruling also bars creditors from rejecting such guarantees, unless they can demonstrate the insufficiency, formal defects, or unsuitability of the guarantee provided. The binding precedent (Tema Repetitivo No. 1203) reads:

“The submission of a bank guarantee or surety bond, provided it covers the updated amount of the liability plus 30%, suspends the enforceability of non-tax liabilities. Creditors shall only reject such guarantees upon proof of insufficiency, formal defect, or unsuitability.”

This ruling reinforces the STJ’s case law, which has consistently upheld the suspension of enforceability through these forms of guarantee. It also negates to such cases the enforcement of Precedent No. 112/STJ (“posting of the guarantee must be made in full and in cash to suspend the enforceability of a tax liability”) and Repetitive Appeal No. 378 (“the bank guarantee does not equate to the full payment of judgment debt for the purposes of suspending the enforceability of tax liability”).

The ruling is grounded in the interpretation of Brazil’s Tax Enforcement Law (Law No. 6,830/1980) and the 2015 Code of Civil Procedure (CPC/2015), both of which equate bank guarantees and surety bonds to cash deposits for replacing the levy of enforcement, provided that the guarantees cover the liability plus 30%.

Remarkably, the decision clarifies that the suitability of a guarantee is subject to its compliance with regulations issued by competent authorities, and that merely establishing a specific validity term in the terms and conditions does not render a guarantee unsuitable.

This is a significant development for the insurance market, as it addresses a recurring concern: enforcement courts often argue that establishing an insured term could jeopardize the effectiveness of the guarantee itself.

The precedent will directly affect guarantees associated with non-tax liabilities and must be observed in proceedings to enforce and comply with judgments. It represents a positive step for the insurance market, which will benefit from increased legal certainty in issuing surety bonds to secure litigation involving administrative collections.

Demarest’s Insurance, Reinsurance, Health and Private Pension team is monitoring this matter closely and remains available to provide further clarification.