The tax credit in the judicial recovery after law no. 14.112/20 reform: a comparative analysis with the spanish competition law

Abstract

The position of the tax credit in the judicial reorganization regime under Brazilian law has undergone several changes over the years due to differences in interpretation carried out by the Superior Courts, which, despite the existence of the rule, and based on a principle of company preservation, substantially altered their form of recovery from the insolvency regime. Law nº 14.112/20 was born with the arduous mission of changing this jurisprudential panorama, since, actually, it does not seem to be a real normative change with the new article 6, §7-B of Law nº 11.101/05; it is an attempt to reduce the failure in the recovery of the tax credit of insolvent business companies under the judicial reorganization regime, a failure related to the jurisprudential evolution of the subject. The Spanish insolvency system, even though it includes the tax credit in the judicial reorganization system, was unable to advance as its legislator intended, having undergone legal changes in 2020 in an attempt to make the system more effective in the face of the economic crisis resulting from the global pandemic. The issue in question faces the complexity of making the public tax regime compatible with the private insolvency regime, a difficulty that does not seem insurmountable to us, but which is probably the main generator of conflicts and the lack of consistency in the application of the rules provided for in Law No. 11.101/05.