Attorney General’s Office of the National Treasury (“PGFN”) Ordinance No. 33 was published in the Official Gazette (“DOU”) on February 9th, 2018 to regulate articles 20-B and 20-C of Law No. 10,522/2002, which allowed, among other measures, the registration of Active Debt Certificates (“CDAs”) before organs of registries of assets and rights subject to arrest or attachment and the advance offer of guarantee in tax execution.

Article 20-B of the law above has been the subject of judicial inquiries recently reported by the media. In cases where a preliminary injunction was granted, the possibility of recording the CDA at the property register in the pre-executory phase was dismissed.  In these cases, judges understood that such legal authorization violates the principle of separation of powers (article 2 of the Federal Constitution) and Article 185-A of the National Tax Code, which appoints that the determination of unavailability of assets is the prerogative of the judge.

The decree above, in addition to establishing procedures related to notification of registration of the debt, registration of CDAs in registries, the location of assets, content of initial petitions for tax foreclosures, substitution, and cancellation of registration, also indicates criteria for the debtor to challenge the record in the pre-enforcement phase.

According to the normative act, the debtor may file defense, within 10 (ten) days of the notice on the endorsement, which may relate to (i) unenforceability of the assets, (ii) overbooking, (iii) other assets or rights, (iv) change of ownership, and (v) existence of a reserve of equity sufficient to guarantee the debt.