Paid billing is a procedure increasingly used in court proceedings and can have catastrophic consequences for companies that suffer from such constriction.
In principle, both civil and tax proceedings are governed by the principle of lesser costs to the debtor, which is based on Article 805 of the Code of Civil Procedure, which states that “when the creditor can promote enforcement through various means. He will order it to be done in the least burdensome way for the debtor. ”
It happens that the principle of lower onerosity depends on the judgment of the magistrate regarding the executory acts in the course of the executions in general, that is, being found two or more executory acts in face of the executed one, the judge must always opt at least damaging to its patrimony.
However, this principle is usually conflicting with the principle of effectiveness in enforcement processes. And the magistrates, following a historical trend of default on the part of the companies and aiming mainly at the effectiveness of the executory acts, have decreed the attachment of the company billings, since this is the shortest way to delineate the process, often establishing the percentage to be seized craft, without the slightest concern about the impact generated by such a lien on the company’s cash flow.
The concern with the state of insolvency that can occur due to the attachment of the percentage of its billing is not restricted only to the executed company and its partners. The legislator also pointed out such precaution in the procedural rule, where the requirement of appointing an administrator depositary to present the debt repayment plan, as well as calculations about the percentage that could be seized, is explicitly found.
The choice of the depositary administrator will be made in the form of article 862 and it is up to him to prepare an effective and urgent plan with the current state of the company’s profits and debts, besides the current weights and indications of the market in which the company operates.
The judge, and the attendant’s oyer’s will evaluate the payment plan prepared by the administrator and executor’s instructions must always take place regarding all the payment conditions presented in the submitted report. The parties are allowed to refuse or waive the application of the seizure on the billing, if in any way, a danger to the company’s activity.
In the payment plan, together with all the information pertinent to the payment method (deadline for the start and end of the payment of the installments), the percentage of the invoice of the company that can be pawned will be included.
Given this, it is necessary to expose a brief concept of billing. Article 22 of Decree-Law No. 2,397/87 states that billing is “gross revenue from sales of goods and services and goods and services of any nature, from public and private companies”, so billing is all about revenue earned by the company through the sale of all its products and services.
According to consolidated understandings of the Superior Court of Justice, the percentage that should be pledged cannot impair the business activities and working capital of the executed company. Because it is not explicit in the text of the Code of Civil Procedure, the limit of the percentage apportioned must be analyzed by the judge on a case-by-case basis, according to the gross profits of the company and the payment plan submitted by the depositary administrator. As can be seen from the case law, the deferred percentage can be relatively high, varying between 3% and 30% of the billing.
For this reason, it is important to make the development of a detailed report, which points the billing percentage subject to garnishment, or even to suggest that any percentage to be seized can take the company to insolvency, in which case the attachment is not a appropriate means of debt satisfaction, to ensure that the company remains active in the market.
