Courtroom declares chapter of Itapemirim
The decision followed a request from Banco Bradesco, one of the company’s creditors.
THE Itapemirim bus and its subsidiaries had their bankruptcy decrees this Wednesday, 21, by the 1st Court of Bankruptcy and Judicial Recovery of the Court of Justice of São Paulo.
The decision, handed down by Judge João de Oliveira Rodrigues Filho, responded to a request from Banco Bradesco, one of the company’s creditors.
In judicial recovery since 2016 with debts of more than R$ 200 million, the Itapemirim group was once the largest road transport from the country. The deal has been the subject of several controversies, including fights between partners and administrators, in recent years.
One of the most commented chapters in recent times was when the company, despite being in judicial reorganization, obtained authorization to set up an airline company, ITAeven in the midst of the covid-19 pandemic, one of the moments of greatest crisis for the segment.
After years in the making, the business it was only on the air for five monthsamong accusations of late pay and other workers’ rights.
At the end of 2021, just before Christmas, the company suddenly canceled its flights, leaving thousands of passengers unattended. At the time, the National Aviation Agency (ANAC) prevented the sale of new airline tickets until the company regularizes the service to passengers.
In Justice, the Itapemirim Transportes Aereos (ITA) was sentenced to transfer R$ 1.28 million in boarding fees to RIOGaleão, the company that manages the Tom Jobim International Airport, or Galeão, in Rio de Janeiro. The amounts refer to the payment that ITA received from passengers, but did not transfer to the concessionaire.
In April, the National Land Transport Agency (ANTT) announced the suspension of all bus company lines.
Understand the situation of the Itapemirim Group
Why is Grupo Itapemirim in judicial recovery?
In 2016, the company had liabilities of BRL 253 million, in addition to tax liabilities of BRL 2.2 billion. As justification, the Itapemirim Group claimed financial difficulties, mainly due to the problems faced in the road transport division – with a reduction of 8.21% in gross revenue and 7.35% in sales volume in 2014. And the plan was approved in May 2019.
Founded in 1953, in the city of Cachoeiro de Itapemirim (ES) by businessman Camilo Cola, Viação Itapemirim was already suffering from a financial crisis at the beginning of the last decade. According to executives in charge of the company at the time, the problems were due to the increase in costs (such as tires, fuel and tolls), in addition to gratuity policies, while the volume of passengers had constant drops.
“Like several companies, the Itapemirim Group filed for judicial recovery seeking to overcome the economic and financial crisis faced. The idea would be to use the legal tool together with a business plan to overcome the difficulties faced”, says Marco Aurélio Veríssimo, coordinator in the area of tax law at Keppler Advogados.
In the year prior to the request for judicial recovery, the company sold about 40% of the vehicle fleet and transferred more than half of the lines in operation to the countryman Viação Kaissara — which started to operate 68 of the 188 lines that were previously under the control of the Itapemirim Group. . As a result, the company remained with only 43% of the market share it had previously.
How are the creditors of Grupo Itapemirim in the event of bankruptcy?
When a company is declared bankrupt, the assets must be collected and liquidated to share the values among the creditors. It is also possible to sell the company entirely or lease it to third parties. While the judicial reorganization process provides for payments according to the plan, in the event of bankruptcy, all assets are included in the account, ranging from receivables to furniture.
“However, there are some preferences in relation to the payment of bankruptcy creditors, such as maintenance expenses of the Bankruptcy Estate and taxes withheld at source (INSS, employees, IRRF etc.), which can make the payment of the immense majority of the creditors involved unfeasible. Even if the judge makes the interpretation more flexible, the fact is that creditors will probably not have a better outcome in bankruptcy than with the maintenance of the company and renegotiation of obligations”, says Veríssimo.
What are the rights of Grupo Itapemirim passengers in the event of bankruptcy?
“In the event that the companies of the Itapemirim Group are declared bankrupt, consumers will be able to ask the judicial administrator regarding the fulfillment of the transport obligations assumed. If there is no possibility of compliance, they must request reimbursement of the amounts spent, through the qualification of credits in the bankruptcy process”, says lawyer Renan Melo.
For Marco Aurélio Veríssimo, this does not mean that payments will be made in the short term or even that they will be made. “In theory, as they are obligations after the judicial reorganization, extra-bankruptcy expenses of the estate should be considered and paid with preference to other creditors in bankruptcy, but only after other creditors such as: employees with salaries with up to three months of decree, creditors promoting DIP Finance and refunds”, he says.