The Second Panel of the Brazilian Superior Court of Justice (STJ), in the recent ruling of AREsp 2,678,907, granted the State of São Paulo the right to receive compensation from a performance bond. This decision was based on events that occurred during the policy’s term, even though the formalization of the claim occurred after that period.

In the analyzed case, the policy had been contracted by a citrus sector taxpayer in São Paulo, intended to meet the conditions for inclusion in the special regime for the appropriation of ICMS**[1]** accumulated credits, as well as to guarantee the payment of fiscal debts.

After the special regime ended in 2017, the State Tax Authority issued an Infraction Notice and Penalty Imposition (Auto de Infração e Imposição de Multa – AIIM) in 2018 against the taxpayer, based on allegations of non-compliance with the legal framework governing the special regime. In this context, the State Treasury understood that the issuance of the AIIM configured the insured risk, thus characterizing the claim and the right to compensation.

In the first and second instances, when ruling on the collection action filed by the State Treasury, the São Paulo State Court of Justice (TJ-SP) dismissed the insurer’s liability, arguing that the claim could not proceed after the special regime had expired. However, this understanding was overturned in the AREsp 2,678,907 ruling by the STJ’s Second Panel, where the appeal filed by the State Treasury was accepted to grant the Special Appeal.

As highlighted in the vote by Minister-Relator Francisco Falcão, “if the debtor’s default on the guaranteed obligation occurred during the policy’s term, the formalization of the claim (its proof) may occur beyond the policy’s expiration.”

In other words, it was decided that the possibility of claiming compensation from the performance bond is not strictly linked to the term of the primary contract (in this case, the ICMS special regime), but to the term of the performance bond itself, even if the AIIM was issued later.

This decision reinforces legal security in using performance bonds as a means to secure tax credits and serves as a warning to insurers about the potential necessity for risk management associated with this type of contract.

[1] ICMS (Imposto sobre Circulação de Mercadorias e Serviços): State tax on the circulation of goods and services in Brazil.