The 2nd Panel of the Brazilian Superior Court of Justice (STJ) recently reaffirmed, in Special Appeal (REsp) No. 2,173,311, its long-standing position on fraudulent conveyance: the transfer of real estate after a tax debt has been registered as overdue tax liability (dívida ativa) constitutes fraudulent conveyance, even if the seller’s individual taxpayer number (CPF) was only included in the Certificate of Overdue tax Liability (Certidão de Dívida Ativa – CDA) and in the tax enforcement proceeding years after the transaction.
The Case Before the STJ
The dispute involved the acquisition of real estate owned by an individual entrepreneur connected to a microenterprise subject to a tax enforcement proceeding brought by the Federal Treasury.
At the time of the acquisition, both the tax enforcement proceeding and the CDA identified only the company’s corporate taxpayer number (CNPJ), without any reference to the entrepreneur’s CPF.
The purchaser argued that it had conducted customary due diligence procedures, including obtaining clearance certificates relating to the individual seller and reviewing the property’s land registry records, which revealed no liens, premonitory registrations, or other encumbrances.
Nevertheless, the STJ concluded that the sale took place after the tax credit had been registered as an overdue tax liability, thereby triggering the statutory presumption of fraudulent conveyance established under Article 185 of the Brazilian National Tax Code (CTN), as amended by Complementary Law No. 118/2005.
According to the reporting Justice Maria Thereza de Assis Moura, the presumption is absolute and dismisses any requirement to prove bad faith on the part of the purchaser.
The Scope of Article 185 of the National Tax Code
Article 185 of the CTN presumes fraudulent any transfer or encumbrance of assets made by a taxpayer indebted to the Public Treasury for a tax credit that has been duly registered as overdue tax liability.
Following the enactment of Complementary Law No. 118/2005, STJ consolidated the understanding that registration of the tax debt as overdue tax liability is sufficient to characterize fraudulent conveyance, regardless of whether a lien has been recorded and irrespective of the purchaser’s knowledge of the debt. Evidence of the purchaser’s good faith or bad faith is therefore considered irrelevant.
This regime is considerably stricter than the rules governing ordinary civil enforcement proceedings under the Brazilian Code of Civil Procedure, where the good faith of a third-party purchaser typically carries greater weight.
Comprehensive Due Diligence: The Scope of Due Diligence on an Individual and Their Business Connections
The decision reinforces the importance of comprehensive due diligence in real estate transactions, asset acquisitions, collateral structuring, and lending operations. The issue is not whether due diligence was conducted, but rather whether its scope was sufficiently broad. The analysis must encompass not only the individual’s liabilities but also tax debts associated with entities through which that individual conducts business activities.
Reviewing the property’s land registry records and obtaining tax and litigation certificates concerning the transferor remains a fundamental step. However, the investigation must go beyond the individual’s certificates alone.
Certain common business arrangements illustrate the disconnect that may exist between a CNPJ and the underlying economic reality. One example is the Individual Microentrepreneur (MEI), a simplified form of sole proprietorship. Although the MEI possesses a CNPJ, the business activity is carried out by the individual, who remains personally responsible for its assets and liabilities — precisely the situation examined by the STJ in this case.
Conclusion
For participants in the credit and receivables markets, the best protection for purchasers, lenders, and investors lies in conducting due diligence capable of identifying, before closing, tax debts already registered as overdue tax liability, whether linked directly to individuals or to the CNPJs through which they operate.
Legal, tax, and asset due diligence therefore remain the primary tool for mitigating risks in real estate, financing, and credit transactions.
References
National Tax Code (Law No. 5,172 of October 25, 1966), Article 185, as amended by Complementary Law No. 118 of February 9, 2005. Available at: https://www.planalto.gov.br/ccivil_03/leis/l5172compilado.htm.
STJ. REsp No. 2,173,311. 2nd Panel. Reporting Justice Maria Thereza de Assis Moura. Decision published in May 2026. Available at: https://processo.stj.jus.br/processo/julgamento/eletronico/documento/mediado/?documento_tipo=integra&documento_sequencial=374543729®istro_numero=202403622777&peticao_numero=&publicacao_data=20260515&formato=PDF