A (im)possibilidade do requerimento da falência pela Fazenda Pública baseado em crédito tributário: uma análise crítica da evolução jurisprudencial do STJ à luz dos princípios da supremacia do interesse público sobre o interesse privado e da preservação da empresa e sua função social

Abstract

This work critically examines the (im)possibility of the Public Treasury petitioning for a debtor’s bankruptcy on the basis of tax credit, analyzing the Superior Court of Justice’s (STJ) evolving case law in light of the principles of the supremacy of the public interest over private interests and the social function of the enterprise. Throughout the study, it reviews the Brazilian bankruptcy regime (from Decree-Law No. 7,661/1945 to Law No. 11,101/2005) through the lens of the principle of preservation of the enterprise, as well as the regime governing tax credit and its enforcement in light of the supremacy of the public interest. It juxtaposes legal arguments for and against bankruptcy petitions filed by the Treasury, including the innovations introduced by Law No. 14,112/2020. It finds that the STJ’s jurisprudence largely bars such Treasury initiatives for fear of compromising viable firms, but focuses almost exclusively on the scenario of unjustified default (a merely rebuttable presumption of insolvency), while overlooking situations of manifest insolvency, such as fruitless tax-enforcement proceedings and unequivocal acts of bankruptcy (conclusive presumptions). The study therefore advocates a balanced solution: although mere delinquency should not warrant an adjudication of bankruptcy at the Treasury’s request, bankruptcy intervention proves legitimate, on an exceptional basis, when the tax debtor is unequivocally insolvent or contumacious. It concludes that, under these delimited circumstances, it is legally sustainable to recognize the Treasury’s standing to seek bankruptcy, reconciling the protection of the public interest in revenue collection with the preservation of viable enterprises.