DEFENSES OF THE JUDGMENT DEBTOR AND INSTRUMENTS FOR CONTROLLING TAX CLAIMS IN TAX FORECLOSURE PROCEEDINGS: A PROCEDURAL ANALYSIS

Abstract

This article examines, from a procedural perspective, the remedies and defense mechanisms available to the taxpayer in Brazilian tax enforcement, taking into account the stages of assessment, enforceability, and collection of tax claims. First, it discusses preventive instruments used before the tax assessment, especially declaratory actions seeking a ruling of no tax liability and preventive mandamus, aimed at addressing concrete risks of unlawful tax demands. Next, after assessment and before the filing of tax foreclosure proceedings, it analyzes annulment actions and repressive mandamus, stressing the importance of measures capable of affecting the enforceability of the tax claim. Once tax foreclosure has been filed, the study addresses enforcement objections (embargos), typically conditioned on securing the debt, and the plea of pre-execution, which is admissible for matters of public policy that can be proven through pre-constituted evidence, as well as the complementary use of incidental measures and autonomous actions in specific situations. Finally, it considers refund actions following undue payment, focusing on time limits and the need to clearly define the refundable amount. The article concludes that effective defense depends on selecting the appropriate remedy for the specific dispute and procedural stage, supported by precise facts and evidence consistent with the claim.