Heloisa Nogueira and Thamara Belinatti
Gol's recent negotiation with the Federal Government to settle its R$ 5 billion debt—comprising tax and social security liabilities—highlights the complexity of handling fiscal liabilities during judicial reorganization proceedings. The company, which is undergoing restructuring outside Brazil, managed to reduce its debt to R$ 880 million while securing more favorable payment terms. This scenario illustrates how renegotiation strategies can be vital for the financial recovery of distressed companies.
Although the Corporate Reorganization Law (LRFE) does not include tax debts in the collective creditor proceedings, managing this liability is essential to ensuring the process's viability. Companies with tax debts must analyze and seek alternative solutions for tax regularization from the outset; this is crucial because, following a recent shift in the Superior Court of Justice's stance (REsp 2053240), the presentation of a Negative Tax Clearance Certificate (CND) is—with rare exceptions—an essential requirement for the court to ratify the reorganization plan. Thus, tax management becomes a key component of business restructuring that must be considered even before filing the petition for judicial reorganization.
While tax debts are not subject to the judicial reorganization petition itself, they must still be factored into the process, primarily because the LRFE requires tax compliance for the reorganization plan to be ratified. Legislative developments—such as Law No. 13.043/2014 and Law No. 14.112/2020—have introduced new mechanisms, such as special installment plans, that facilitate the negotiation of tax debts for companies undergoing reorganization, thereby making the restructuring process more viable.
However, the requirement for a Negative Tax Clearance Certificate (CND) remains a contentious issue. The CND (Certificate of Regularity regarding Tax Debts) is required for the continuation of the reorganization process, which often becomes an obstacle—especially because, despite regulatory progress, there remains a clear need to strike a balance between the company's repayment capacity, its tax debt, and the payment methods accepted by the tax authorities.
The lack of flexibility in installment plans and tax settlement options, the requirement for substantial down payments, and the lack of clarity regarding the consequences of failing to present the CND continue to generate legal uncertainty; consequently, this weakens the mechanism itself and discourages many business owners from utilizing it.
The implementation of special installment plans and other legislative alternatives, such as tax settlements, has represented significant progress. However, the effectiveness of these options depends on each company's specific situation. For those with substantial tax debt, negotiations with tax authorities can be more challenging. The central issue remains the need for a clearer, more efficient solution regarding the CND requirement, which should not hinder the success of the reorganization.
Therefore, although alternatives for regularizing tax liabilities exist, they are still far from sufficient or realistic for the situations faced by many companies. It is crucial that legislation continues to evolve—alongside the efforts of lawyers advocating for these businesses—to enable companies to undergo judicial reorganization processes without the lack of a CND rendering their recovery impossible.
