Immunity from Seizure of Assets up to 40 Minimum Wages in Tax Enforcement Proceedings

The present article aims to analyze the immunity from seizure of assets up to the limit of 40 (forty) minimum wages, especially in the context of Tax Enforcement Proceedings, as well as the consolidated understanding of the courts regarding the scope of this asset protection.

This topic is of great practical relevance, particularly for individuals included as defendants in Tax Enforcement Proceedings, considering the frequency with which enforcement measures affect financial assets, often automatically through electronic blocking systems.

Individuals and legal entities with tax debts duly assessed and registered as active debt may be subject to Tax Enforcement Proceedings, a procedural mechanism governed by Law No. 6,830/1980 (Tax Enforcement Law – LEF), whose purpose is the satisfaction of public credit.

Pursuant to Article 8 of the LEF, the debtor shall be summoned to, within five (5) days, pay the debt, plus legal charges, or secure the enforcement.

If payment is not made or the enforcement is not secured within the legal deadline, the Public Treasury is authorized to adopt enforcement measures aimed at satisfying the credit, including the seizure of assets and the blocking of financial funds.

Article 11 of the LEF establishes the order of preference for seizure, granting priority to cash. For this reason, it is common practice that the first enforcement measure consists of blocking funds in bank accounts through the SISBAJUD system.

It is important to highlight that such blocks may occur automatically, often without prior notice to the debtor, pursuant to Article 854 of the Code of Civil Procedure¹.

Despite the broad enforcement powers of the State, the legal system establishes limits on enforcement in order to preserve a minimum amount of assets indispensable to the debtor’s subsistence.

In this context, Article 833, item X, of the Code of Civil Procedure² expressly provides that amounts deposited in savings accounts are exempt from seizure up to the limit of 40 (forty) minimum wages.

When interpreting this provision, the Superior Court of Justice has consolidated the understanding that such immunity is not restricted to savings accounts, extending to amounts held in checking accounts, investment funds, or even cash, provided that the legal limit is respected and there is no abuse, fraud, or bad faith. For illustrative purposes, the following decisions of the Superior Court of Justice are noted:

INTERLOCUTORY APPEAL IN SPECIAL APPEAL. TAX ENFORCEMENT. FUNDS BLOCKED IN SAVINGS ACCOUNT. IMMUNITY FROM SEIZURE. LIMIT OF UP TO 40 MINIMUM WAGES. INTERLOCUTORY APPEAL BY THE MUNICIPAL TREASURY DENIED.

1. The prevailing understanding of this Court is that not only amounts below 40 minimum wages deposited in savings accounts are exempt from seizure, but also those held in investment funds, checking accounts, or kept in cash, except in cases of abuse, bad faith, or fraud. Precedents. 2. The interlocutory appeal is denied.
(STJ - AgInt no REsp: 2081563 SP 2023/0218578-6, Reporting Justice: TEODORO SILVA SANTOS, Judgment Date: 05/13/2024, Second Panel, Publication Date: 05/21/2024). (emphasis added)

CIVIL PROCEDURE. TAX ENFORCEMENT. IMMUNITY FROM SEIZURE. 40 (FORTY) MINIMUM WAGES. SCOPE.

1. According to the settled case law of this Superior Court, the amount of up to forty minimum wages deposited in checking accounts, savings accounts, or other types of investment is exempt from seizure, except when abuse, bad faith, or fraud is proven. Precedents. 2. The provisions of Article 854, § 3, I, of the CPC/2015 do not override the consolidated understanding of the Superior Court of Justice that amounts below 40 minimum wages are presumptively exempt from seizure. 3. The interlocutory appeal is dismissed.
(STJ - AgInt no AREsp: 2258716 PR 2022/0373580-6, Reporting Justice: GURGEL DE FARIA, Judgment Date: 05/15/2023, First Panel, Publication Date: 05/19/2023). (emphasis added)

Thus, the protection provided by Article 833, item X, of the Code of Civil Procedure must be interpreted broadly, considering its purpose of ensuring the so-called “existential minimum”.

However, it should be noted that this immunity is not recognized ex officio by the judge. According to Theme 1,235 of the Superior Court of Justice³, this is a matter that must be raised by the interested party within the Tax Enforcement Proceedings.

Furthermore, this protection is generally directed at individuals, as it is linked to ensuring the subsistence of the debtor and their family.

With regard to legal entities, case law adopts a more restrictive approach, requiring proof that the blocked funds are essential for maintaining business activities, paying employees, and preserving the company’s social function in order to allow for their release.

The Superior Court of Justice has consistently held that, in such cases, the relaxation of seizure depends on robust and unequivocal proof of the essential nature of the seized funds, and that a mere generic allegation of financial difficulty is insufficient. It is therefore necessary to demonstrate that the seized funds are intended for purposes such as the payment of salaries or essential operating expenses:

INTERLOCUTORY APPEAL IN SPECIAL APPEAL. CIVIL PROCEDURE. INTERLOCUTORY APPEAL. DECISION OF THE COURT PRESIDENT. RECONSIDERATION. SEIZURE OF FUNDS. AMOUNTS DEPOSITED IN FINANCIAL INVESTMENTS OF THE DEBTOR COMPANY. PROTECTION OF SMALL SAVINGS UP TO THE LIMIT OF FORTY MINIMUM WAGES. INAPPLICABILITY. LEGAL ENTITIES. CONSISTENCY OF THE APPELLATE DECISION WITH THE CASE LAW OF THIS COURT. APPLICATION OF STJ PRECEDENT 83. INTERLOCUTORY APPEAL GRANTED. SPECIAL APPEAL DENIED.

1. The case law of the Superior Court of Justice establishes that “the immunity provided for in Article 833, item X, of the CPC/2015, reproducing the rule contained in Article 649, item X, of the CPC/1973, does not, as a rule, apply to legal entities, as it is intended to ensure a minimum existential standard for the debtor (natural person). In this regard: ‘[…] the intention of the legislator was to protect family savings and not legal entities, even if they maintain a savings account as their only bank account’ (AREsp 873.585/SC, Reporting Justice Raul Araújo, DJe 03/08/2017)” (AgInt no REsp 1.914.793/RS, Reporting Justice Herman Benjamin, DJe 07/01/2021). 2. In the present case, the Court of Appeals, after careful examination of the records, concluded that the seizure of funds held in accounts owned by the legal entity was admissible, given the absence of proof that the seized financial resources were indispensable to the exercise of the business activity carried out by the appellant, also noting that the requested protection applies only to natural persons. 3. The understanding adopted in the appellate decision is consistent with the settled case law of this Superior Court, which leads to the application of STJ Precedent 83. 4. The interlocutory appeal is granted for reconsideration of the decision and, upon new examination, the appeal is known and the special appeal is denied.
(STJ - AgInt no AREsp: 2467204 PR 2023/0351940-1, Reporting Justice: RAUL ARAÚJO, Judgment Date: 04/29/2024, Fourth Panel, Publication Date: 05/02/2024). (emphasis added)

TAX LAW. CIVIL PROCEDURE. TAX ENFORCEMENT. RELEASE OF SEIZED FUNDS. BANK ACCOUNT OF LEGAL ENTITY. IMMUNITY FROM SEIZURE REJECTED BY LOWER COURT. PURPOSE. PAYMENT OF SALARIES. REEXAMINATION OF FACTUAL AND EVIDENTIARY MATTERS. IMPOSSIBILITY. VIOLATION OF THE PRINCIPLE OF LEAST BURDENSOME ENFORCEMENT. IMPOSSIBILITY OF REVIEW. STJ PRECEDENT 7. PRECEDENTS. APPELLATE DECISION. FAILURE TO SPECIFICALLY CHALLENGE ESSENTIAL GROUNDS.

1. It is not possible to admit the special appeal where altering the conclusions reached by the lower court—namely, that the rule of immunity from seizure under Article 833, item IV, of the CPC does not apply to amounts blocked in accounts held by legal entities, due to the lack of proof that such amounts were intended for the payment of employee salaries—would require reexamination of the factual and evidentiary record, which is prohibited in special appeals. Application of STJ Precedent 7. 2. According to the settled case law of the STJ, it is not possible, in a special appeal, to verify the correct application of the principle of least burdensome enforcement, as provided in Article 805 of the CPC, due to the obstacle of STJ Precedent 7. 3. The appeal is not admitted where the appellant fails to challenge a fundamental ground of the appellate decision, namely that the rule of Article 833, item IV, of the CPC is intended to prevent the seizure of the debtor’s salary and not funds belonging to a company allegedly intended for employee payments, thus encountering the obstacle of STF Precedent 283. 4. The interlocutory appeal is denied.
(STJ - AgInt no AREsp: 2147268 RS 2022/0175780-6, Reporting Justice: SÉRGIO KUKINA, Judgment Date: 08/28/2023, First Panel, Publication Date: 08/31/2023). (emphasis added)

Therefore, it is noted that although there is no automatic legal immunity applicable to legal entities, it is possible, in exceptional and duly proven circumstances, to mitigate enforcement measures in order to preserve the continuity of productive activity and observe the principles of least burdensome enforcement and preservation of economic activity.

It is also noteworthy that, in the case of sole proprietors, the Superior Court of Justice admits, on an exceptional basis, the application of the immunity provided for in Article 833, item X, of the CPC. This is because the figure of the sole proprietor does not constitute a separate legal entity, but rather a legal construct that allows a natural person to carry out business activities in their own name, without the creation of an autonomous legal personality. For illustration purposes, the following decision is cited:

INTERLOCUTORY APPEAL IN SPECIAL APPEAL. CIVIL PROCEDURE. IMMUNITY FROM SEIZURE. BANK DEPOSITS UP TO THE LIMIT OF 40 MINIMUM WAGES. NON-APPLICATION OF ARTICLE 833, ITEM X, OF THE CPC TO LEGAL ENTITIES. APPELLATE DECISION IN ACCORDANCE WITH STJ CASE LAW.

1. The issue under discussion is whether the immunity from seizure of amounts up to 40 (forty) minimum wages, as provided for in Article 833, item X, of the CPC/2015, applies to legal entities. 2. The case law of the STJ establishes that such immunity does not benefit legal entities, except in the case of sole proprietors and small business entities, where there is proof that the funds are indispensable to the exercise of business activity. 3. To overturn the conclusions reached by the lower court regarding the essential nature of the funds would require reexamination of the factual and evidentiary record, which is barred by STJ Precedent 7. The interlocutory appeal is denied.
(STJ - AgInt no AREsp: 2683158 SP 2024/0241851-8, Reporting Justice: HUMBERTO MARTINS, Judgment Date: 12/02/2024, Third Panel, Publication Date: 12/10/2024).

In this context, the immunity from seizure of assets up to 40 minimum wages, as provided for in Article 833, item X, of the Code of Civil Procedure, must be interpreted in light of the protection of the existential minimum, as consolidated in the case law of the Superior Court of Justice.

It should be emphasized, however, that the application of this guarantee requires a case-by-case analysis, especially in relation to legal entities, where proof of the essential nature of the funds is required, or in the case of sole proprietors, where a more flexible approach may be adopted due to the absence of patrimonial separation.

Conclusion

In light of the foregoing, it is verified that, within the scope of Tax Enforcement Proceedings, the Public Treasury has effective mechanisms for the satisfaction of tax credits, among which the blocking of financial assets through the SISBAJUD system stands out, often carried out automatically and without prior notice to the debtor.

However, such prerogatives are not absolute and are limited by the legal guarantees afforded to the debtor, especially with regard to preserving a minimum amount of assets indispensable to their subsistence. In this regard, Article 833, item X, of the Code of Civil Procedure establishes the immunity from seizure of amounts up to the limit of 40 (forty) minimum wages, a protection that, according to the consolidated understanding of the Superior Court of Justice, must be interpreted broadly to include not only savings accounts, but also amounts held in checking accounts, financial investments, or even cash, except in cases of abuse, fraud, or bad faith.

On the other hand, it is emphasized that the use of this guarantee depends on the initiative of the interested party, since it cannot be recognized ex officio by the court, reinforcing the need for proper legal action within Tax Enforcement Proceedings.

Furthermore, it is observed that this immunity is primarily intended to protect individuals, while, in the case of legal entities, the mitigation of enforcement measures is conditioned upon proof that the blocked funds are essential for maintaining business activities.

Therefore, it is concluded that, although the State’s action in collecting tax credits is legitimate, it must be exercised in accordance with the limits imposed by the legal system, in order to safeguard the debtor’s existential minimum and avoid undue asset constraints. Legal assistance is recommended to ensure the proper defense of the debtor’s rights.

Authors

Eduardo Brasil
Vinícius Moraes
Eduarda Borges

¹ Article 854. In order to enable the seizure of money held in deposits or financial investments, the judge, at the request of the claimant and without prior notice to the debtor, shall order financial institutions, through an electronic system managed by the authority supervising the national financial system, to render unavailable financial assets held in the name of the debtor, limiting such unavailability to the amount indicated in the enforcement proceeding. (emphasis added)

² Article 833. The following are not subject to seizure: (...) X – the amount deposited in a savings account, up to the limit of 40 (forty) minimum wages;

³ Established thesis: “The immunity from seizure of amounts below 40 minimum wages (Article 833, item X, of the CPC) is not a matter of public policy and cannot be recognized ex officio by the judge; it must be raised by the debtor at the first opportunity to speak in the proceedings or in the context of objections to enforcement or challenges to compliance with judgment, under penalty of preclusion.”