Recuperação judicial ainda necessita de ajustes no Brasil

Por Jornal do Comércio

Depois de 13 anos em vigor, a lei de recuperações e falências precisa de ajustes. Entre as mudanças necessárias está a inclusão de todos os créditos tributários e de alienação fiduciária, defende o advogado João Adalberto Medeiros Fernandes Júnior, que atua na assessoria de empresas que encaram a recuperação e no posto de administrador judicial. Medeiros também considera crucial mudar a cultura empresarial sobre o uso do mecanismo. O advogado, que presidiu a Comissão deFalências e Recuperações Judiciais da OAB-RS entre 2016 e 2018, e integra escritório que acompanha mais de 50 processos de recuperação – entre eles, o maior do Rio Grande do Sul, que é o da Ecovix – e 300 de falências, conjunto que soma passivos de mais de R$ 10 bilhões, aponta mudanças em exame no Congresso Nacional para dar mais transparência aos processos e atrair investidores. Em 2018, o Rio Grande do Sul somou 140 pedidos de recuperação, ante 162 de 2017, mas a busca do instrumento disparou em dezembro, com 30 pedidos, segundo a Serasa. Já solicitações de falência chegaram a 91, ante 62 do ano anterior.

JC Contabilidade – Os pedidos de recuperação judicial cresceram no fim de 2018, e os de falênciasno ano. O que este quadro indica?

João Adalberto Medeiros Fernandes Júnior – O aumento dos pedidos de recuperação no fim do ano é comum, principalmente pelo efeito do 13º salário para empresas que enfrentam dificuldades. Já os pedidos de falência são provenientes da crise político-econômica que assola o Brasil nos últimos anos. Além desses elementos nefastos, 2018 ainda foi agravado pela greve dos caminhoneiros e o período eleitoral. Não dá para ignorar que, entre 2013 e 2015, as empresas tomaram crédito muito facilmente e, depois, sofreram quando os bancos enxugaram a oferta. Quem estava nesse ciclo vicioso, dependendo desse crédito, enfrentou problemas. Como a engrenagem trancou, empresastiveram de buscar um mecanismo para gerir a situação financeira, como a recuperação judicial. Para 2019, podemos ter, já no começo do ano, rescaldo de uma crise mais longa, e, com isso, podem surgir mais casos. A retomada da economia também pode criar melhores condição para a reestruturação do passivo das empresas.

Contabilidade – O que leva uma empresa à Justiça?

Medeiros – Uma empresa com melhor planejamento de fluxo de caixa consegue superar períodos de crise, normais no ciclo dos negócios. Mas muitas se alavancaram demais, fizeram investimentos muitos fortes, apostando na perspectiva promissora do País. Escândalos como a Lava Jato trouxeram também dificuldades maiores, rompendo o ciclo. Mas há empresas que não se planejaram para passar por essas oscilações ou não sabem trabalhar com planejamento econômico-financeiro.

Contabilidade – A recuperação é a melhor solução?

Medeiros – A recuperação judicial é um dos remédios possíveis para se usar na crise, mas há outros mecanismos de negociações e até recuperações extrajudiciais. A recuperação judicial estabelece um período no qual as obrigações deixam de ser exigidas, o que dá fôlego para que a empresa possa se refazer, estruturar seu plano de recuperação e promover as mudanças necessárias. É o momento de fazer o dever de casa. Mas a maior parte dos empresários acha que a recuperação judicial é o único remédio, e não é. Ela é apenas um tipo de tratamento mais invasivo e, por vezes, mais efetivo.

Contabilidade – As empresas revisam hábitos?

Medeiros – O empresário, muitas vezes, acha que vai entrar um administrador judicial para comandar sua empresa. Não é nada disso. Ele será o link entre a empresa, o juiz e os credores, dá transparência ao processo e fiscaliza as atividades. Isso é importante: a empresa está pedindo um auxílio ao Poder Judiciário, então precisa ser transparente sobre seu ativo e passivo, e também quanto à situação do negócio. Muitos donos de empresas ou administradores têm uma barreira cultural, pois acham que o instrumento é suficiente e podem seguir fazendo a mesma coisa. Quem usa a recuperação dentro do que a lei se propõe tem de fazer o dever de casa, que é reestruturar a operação.

Contabilidade – Os empresários seguem as soluções indicadas?

Medeiros – É uma pergunta difícil, porque alguns seguem, mas outros não. Empresário, por natureza, é um sonhador, um visionário, por isso é um empreendedor. Muitas vezes, espera por uma solução mágica, que venha um investidor, alguém que queira comprar a empresa ou parte dela, e isso não é possível, especialmente pelo risco existente. Essas alternativas são legais e viáveis, mas devem ser utilizadas através do próprio plano de recuperação a ser aprovado pelos credores. Faz parte de um planejamento. Por menor que seja a crise, é importante buscar um especialista para diagnosticar o que está ocorrendo, se é problema de gestão, endividamento, mercado ou até de produto.

Contabilidade – O repasse de informações é feito com profundidade e a contabilidade é aberta sem subterfúgios?

Medeiros – A gente parte do pressuposto de que uma empresa que busca a recuperação está em real crise, que não usará o instrumento para fraudar credores. A legislação, com acerto, é pesada nesses casos. Um processo de recuperação tem de ter bons profissionais, com expertise para fazer o diagnóstico da operação, além de juízes experientes e administradores judiciais com estrutura necessária. É importante, também, que quem estiver envolvido dê transparência aos números. Uma das exigências da lei é que o administrador judicial apresente mensalmente o relatório de atividades. É uma forma de mostrar ao magistrado do processo, credores e interessados o que está efetivamente acontecendo para conseguirem avaliar riscos e identificar as atitudes que estão sendo adotadas para a recuperação da empresa.

Contabilidade – Qual é a fatia de empresas que consegue se recuperar?

Medeiros – Diria que 50% dos casos têm sucesso, mas a questão é o tempo que usam esse recurso. O mercado está mais aberto hoje, como os bancos que representam os maiores volumes de passivos, à negociação extrajudicial para reestruturar as dívidas. Os empresários começaram a usar mais esse instrumento, pois a via judicial gera transtornos. A lei também impede que alguns créditos, como os da alienação fiduciária, sejam incluídos na recuperação judicial. Os bancos quase não usam mais a garantia real nos contratos, justamente para não correrem risco em eventual processo judicial.

Contabilidade – A exposição gerada pelo processo atrapalha?

Medeiros – Se atrapalha, é muito mais por desconhecimento, pois a visão geral é que, se está em recuperação judicial, é porque a empresa está falida. Mas não é nada disso. Não está falida. Está em processo de reestruturação. O empresário tem de abrir o coração (da empresa) e dar transparência a tudo. Tem de mostrar a realidade e, em contrapartida, o que pode ser feito. Se o processo de recuperação for sério e transparente com os credores e o juiz, a chance de sucesso é muito grande.

Contabilidade – Quais mudanças na lei ajudariam as empresas a reverterem as dificuldades?

Medeiros – Citaria três mudanças. A primeira seria sujeitar todos os credores ao procedimento recuperacional, estabelecendo pesos de voto diferenciado de acordo com a qualidade do crédito e o tipo de garantia. A segunda é criar incentivo para atrair aporte de dinheiro novo para fomentar empresas em recuperação judicial. O recurso injetado teria de ter garantias efetivas de prioridade sobre os pagamentos. A lei brasileira não tem regras claras para esse tipo de financiador, importante para ingresso de dinheiro novo na restruturação empresarial. A terceira medida é encontrar uma solução para os débitos tributários, como melhores condições de pagamento, que, hoje, no âmbito Federal, é limitado a 84 parcelas, o que é muito pouco para quitar os passivos, especialmente porque a maioria dos débitos das empresas é com bancos e tributos.

 

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