PGFN Regulates the Offering of Surety Bonds for Tax Debts: Updates and Impacts for Taxpayers

On December 30th, the Office of the Attorney General of the National Treasury (“PGFN”) issued Ordinance No. 2,044/2024 to establish supplementary rules regarding the offering and acceptance of surety bonds aimed at anticipating the effects of asset seizure in a future tax enforcement proceeding or the administrative negotiation of federal tax debts.

Prior Scenario

Before the issuance of this Ordinance, taxpayers were unable to offer surety bonds when the tax debt arose from the conclusion of federal administrative litigation but had not yet been registered as federal overdue tax debt.

This was because the tax debt was in a sort of “limbo” between the account balance of the Brazilian Federal Revenue Service (“RFB”) and its registration as federal overdue tax debt.

In practice, taxpayers could not take advantage of the possibility of providing an early guarantee as outlined in Article 11 and subsequent articles of PGFN Ordinance No. 33, because:

• On one hand, the RFB lacked jurisdiction to review the taxpayer’s request.

• On the other hand, the PGFN refused to assess it, arguing that it lacked competence until the debt was officially registered as overdue tax debt.

As a result, taxpayers had to resort to legal action to request early guarantees and the effects of asset seizure in future tax enforcement proceedings whenever their tax debts fell into this “limbo” between the RFB and PGFN.

Changes Introduced by Ordinance No. 2,044

With the new PGFN Ordinance No. 2,044, this issue has been addressed. Taxpayers are now allowed to provide early guarantees via the REGULARIZE portal of the PGFN, even if the tax debt has not yet been registered as overdue tax debt, provided they comply with the procedures outlined in PGFN Ordinance No. 33.

Additionally, Ordinance No. 2,044 brings further clarity for taxpayers by specifying that the total amount of the surety bond must match the total debt amount, including applicable charges and legal additions, updated as of the date of issuance of the policy.

Impact on Judicial Proceedings

This change may strengthen taxpayers' arguments before the Judiciary regarding unlawful judicial impositions on surety bonds. Some judges have required an additional 30% over the total debt amount for acceptance, citing Article 835, § 2º, of the Code of Civil Procedure—even though this provision does not apply to tax debts.

In our view, since tax enforcement proceedings serve the creditor’s interests, this new ordinance may not only reinforce the right to provide guarantees without the additional 30%, but it could also allow taxpayers to request the reduction of previously provided guarantees that were more burdensome than those now required by the creditor itself. This could be justified either by the interpretative nature of the PGFN’s clarification or by the application of retroactive favorable effects in the event the rule is considered innovative.

Partial Surety Bond Guarantees

Finally, Ordinance No. 2,044 clarifies that taxpayers may offer a surety bond covering only part of the tax debt in both tax enforcement proceedings and administrative negotiations. However, it also makes two important reservations:

1. A partial guarantee does not prevent the PGFN from collecting the remaining tax debt.

2. A partial guarantee does not allow the taxpayer to renew their federal tax clearance certificate.