Considerations about the term “unsecured debt” determined by the Law 4.357/1964, for purposes of imposing the prohibition on the distribution of profits to the partners of companies that are debtors of the federal tax

Abstract

The Law 4,357, of July 16, 1964, prohibited the distribution of profits to partners by a legal entity that has a debt with the federal tax authorities, under penalty of imposition of a fine equivalent to 50% of the amount distributed, both to the company and to the its partners. It so happens that, for this purpose, the debt must be “unsecured”, which is the one definitively constituted, which does not have its enforceability suspended, as well as which is not guaranteed in tax foreclosure. It is also necessary for the tax authorities to investigate in advance whether there is a reserve of assets sufficient to cover all debts, so as not to violate the sole paragraph of art. 185 of the CTN. The prohibition on the distribution of profits to company partners with tax debts, moreover, is questioned for violating the principles of economic freedom, free enterprise and equality.