Post by account_disabled on Mar 14, 2024 5:17:07 GMT 1
Precedent 371 is not applicable to financial participation contracts in a Community Telephony Program (PCT). This was the understanding reached by the 3rd Panel of the Superior Court of Justice, which upheld an appeal by Telefônica Brasil SA to dismiss the request for subscription of new shares in favor of the user.
According to the summary, "in financial participation contracts for the acquisition of a telephone line, the Equity Value of the Share (VPA) is determined based on the balance sheet for the month of payment".
According to the rapporteur of the appeal, minister B2B Lead Paulo de Tarso Sanseverino, Telefônica is right, since, in the PCT modality, users did not directly contract telephone services, but rather the construction of the community plant.
“After the implementation of the community plan, this local network was evaluated and incorporated into the telephone company's assets, and corresponding shares were then issued in favor of users based on the evaluation value”, explained the rapporteur.
Sanseverino explained that the issuance of shares based on the balance sheet for the month of payment in the PCT system violates the contractual rules, “as the price paid by the user at the time of contracting does not necessarily equate to the value at which the telephone network will be valued, after effectively implemented.”
According to the ruling, in these cases, the payment of the capital does not take place in cash, but through the delivery of goods at a time after payment of the price, and, therefore, it is not possible to apply the monthly balance sheet criterion from the date of payment to a financial participation contract in the PCT modality.
The court of origin understood that the user, author of the demand, would be entitled to supplementary shares based on the monthly balance sheet criterion, in light of Precedent 371 of the STJ. When appealing to the Citizenship Court, Telefônica claimed that the issuance of shares in favor of the user only became possible after the effective implementation of the community plan, as the incorporation of this asset into the company depended on prior evaluation and approval by the general assembly. With information from the STJ Press Office.