Facing a pending tax enforcement action, it is common for partners in indebted companies to reorganize their own assets — sometimes to protect the family, sometimes, deliberately, to shield assets from the tax authority's reach. The line between the two intentions is rarely visible at a glance; the courts draw it out of presumptions and deadlines.
The Question
The First Panel of the Superior Court of Justice (Superior Tribunal de Justiça, STJ) faced, in REsp 2,117,867-RS, decided on August 4, 2026 (opinion for the Court by Justice Regina Helena Costa), a question that reduces that line to a single point in time: once the redirection of a tax enforcement action against a partner has already been ordered, but before her personal service of process, does her gift of a property to family members amount to fraud against enforcement (fraude à execução)?
The Analysis
The general rule of Brazilian tax law sits in Article 185 of the National Tax Code (Código Tributário Nacional, CTN — Law No. 5,172/1966, as amended by Complementary Law No. 118/2005): the transfer or encumbrance of assets by a taxpayer in debt to the tax authority is presumed fraudulent from the moment the tax credit is registered as active debt (dívida ativa). For a partner whose name is not on the active-debt certificate, however, STJ case law applies the presumption, as a rule, only to transfers made after that partner is served. The partner in this case was in that position: she only became liable for the debt by a later redirection decision, against which she had not yet been served when she made the gift.
That is because redirecting a tax enforcement action is not, by itself, the same as personally serving the redirected party — and service is what traditionally marks, for anyone not originally on the debtor side, the starting point from which an asset transfer may be found to constitute fraud against enforcement, rendering the transfer ineffective against the creditor. The First Panel, by majority, held that this requirement can yield: fraud against tax enforcement may be recognized when, even though the asset transfer took place before service, the evidence shows the partner had, through other means, clear knowledge of the redirection decision.
The Nuance
It bears noting that the Court did not dispense with service as the general rule — it carved out a narrow exception, conditioned on proof of clear knowledge, which may show up, among other ways, through the filing of a power of attorney with special authority, or through the filing of a defense against the enforcement action or of a pre-enforcement objection (exceção de pré-executividade). In the case at hand, that proof came from the partner's own conduct: she had granted, as manager of the debtor company, a power of attorney later used to challenge the redirection, before gifting the property to members of her own family, who lived at the same address. For the STJ, that combination — a power of attorney contesting the redirection, followed by a gift to close relatives — amounted to a disguised attempt at asset shielding (blindagem patrimonial) and depleting her estate to defraud the tax authority, not a simple family gift.
Practical Implication
The relevant marker for a partner facing redirection risk, then, is no longer exclusively formal service. Although formal service remains the general rule, any act showing clear knowledge of the redirection — filing a defense, appointing an attorney with specific authority for the case, challenging the enforcement action — may be treated as an event capable of rendering a subsequent gift, or any other asset transfer, ineffective on grounds of fraud against enforcement. Asset transfers decided within that window, even within the family, call for heightened caution: even where the stated purpose is to protect the family, that motive does not, by itself, rule out a finding of fraud.
The ruling does not address estate and wealth planning in general — it addresses the moment such planning stops being effective against the tax authority. Above all for partners of companies facing an ongoing tax enforcement action, clear knowledge of the redirection, proven by other means, may be enough to support a finding that an asset transfer decided within that window is ineffective, with or without formal service.
