Executive Summary:
- The Federal Court of Administrative Tax Justice (TFJA) recently issued a ruling on how the joint liability of partners or shareholders of a company operates.
- The TFJA specified that the figure of joint liability of partners or shareholders is a subsidiary joint liability, meaning that compliance with contributions must be required from the contributing company, the necessary steps must be taken to guarantee and/or collect the tax interest and, if this cannot be done in whole or in part, it is then demandable from the jointly liable party.
According to the Federal Tax Code (CFF), in certain cases (such as vacating the tax domicile without filing the corresponding notice with the SAT), partners or shareholders will be jointly liable for the contributions that have been incurred in relation to the activities carried out by the company when they had such status, in the part of fiscal interest that cannot be guaranteed with the assets of the company, without the liability exceeding the participation that they had in the share capital of the company during the period or on the date in question.
The CFF itself indicates that joint liability is calculated by multiplying the percentage of participation that the partner or shareholder had in the subscribed share capital at the time of the cause, by the omitted contribution, in the part that cannot be covered by the company's assets.
In this regard, the TFJA, when resolving a nullity suit (which, although it refers to the CFF in force in 2016, the current text is essentially the same), specified that the figure of joint liability of partners or shareholders is a subsidiary joint liability, that is, compliance with contributions must be required from the contributing company, the necessary steps must be taken to guarantee and/or collect the tax interest and, in the event that this cannot be done in whole or in part, it is then demandable from the jointly liable party.
If, once the above has been carried out, full or partial payment could not be guaranteed, there is an outstanding amount on which the amount of joint liability is calculated, which will be done by multiplying the percentage of participation that the partner or shareholder had in the subscribed share capital at the time of the accrual, by the omitted contribution, in the part that cannot be covered by the company's assets.
That is, the percentage that represents the shareholding of each partner in the company's share capital must be considered, and not the financial contribution made by the founding partners for the issuance of the securities that represent the company's shares.
To learn more about this type of liability, we invite you to contact one of the specialists at Santamarina and Steta, who will be happy to advise you.
