TRIGUEIRO FONTES - Advogados

Publishing: Trigueiro Fontes Advogados

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June 2010
Number: LI

In this presentation, after we celebrate the 50th edition of our monthly newsletter, we announce the installation of the Schedule 21 Committee in Trigueiro Fontes Advogados, whose goal is to collect contributions, discuss and implement a schedule of environmental commitments throughout the Office.

It's worth checking major decisions under the tax law, as those which understood to be illegitimate to pass once more PIS and COFINS to consumer of electric energy and those which state that ISS does not levy on direct incorporation.

Good Read.


LABOR LAW Subordination does not mischaracterize management position Subordination to store’s general manager is not reason enough to exclude the hypothesis of a management position and, by itself, enable that financial manager can receive overtime. This understanding, applied by the 5th Panel, was held with the decision of SDI-1 of TST, to reject embargos of the employee, based on Article 62, II, of CLT. (E-ED-RR - 103300-52.2000.5.05.0021)		BUSINESS LAW Large sized limited liability companies are to publish balance sheet Balance sheets and financial statements of large sized limited liability companies should be published by official press and in newspapers of general circulation. The decision of the 25th Civil Court in São Paulo stated the nullity of item 7 of Circular Letter No. 099/2008 of the Brazilian Department of Registry of Commerce (DNRC), and ordered the enforcement of Act 6404/76, as amended by Act no. 11.638/2007. (A.O. no 2008.61.00.030305-7)

Delegate manager task on vacation violates the equality Based on the principle of equality in treatment of employees, as reflected in Precedent No. 159, 4th Panel of TST rejected appeal of a company that, when the manager went on vacation, distributed his tasks among other employees. Therefore, the decision which granted the replacement salary (proportionately) to an employee who replaced the manager was upheld, preventing then the illicit enrichment. (RR-85200-20.2007.04.0025) Judicial mortgage in labor action Judicial mortgage is the effect of an adverse judgment, and may be declared ex officio by the judge, irrespective of creditor's request. Seventh Panel of TST asserted that this mortgage is a procedural institute of public policy, which aims at ensuring the enforcement of judicial decisions, preventing the decay of debtor’s assets, to the detriment of future performance and, therefore, a creditor’s request is not required. (Cause no. 64100-36.2007.5.03.0025).		PRECEDENTS OF STJ Precedent 449: “The parking space which has its own registration in real estate registry office is not a family asset for purposes of levy”. Precedent 450: “The update of outstanding balance precedes the amortization by installment payment in agreements bound to SFH”. Precedent 451: “Levy of place of business headquarters is lawful”. Precedent 452: “The extinction of small value shares is permitted by Federal Government, however, the participation of judicial office is prohibited.”

ST Untimely notice does not take away union official stability The communication for the company on the election of union official, in a period exceeding 24 hours (CLT, art. 543), does not extinguish the right to stability, provided that the scope of the law purpose is found: to prevent the employer is caught trying to dismiss the employee. (E-ED-RR-543048-09.1999.5.01.0263)		TAX LAW Collection for space in electric energy transmission The Federal Supreme Court (STF) sustained TJ-RO appellate decision which annulled the collection made by the Municipality of Ji-Paraná to an electric energy utility, for occupation of land where the poles are fixed, and the public airspace used by the transmission system (cables). Since Brazil’s Federal Constitution defines the Federal Government's exclusive jurisdiction to explore services and facilities of electric energy and private jurisdiction to legislate on the subject, it was understood that the Municipality exceeded its jurisdiction by amending the municipal statute which authorized the collection. (RE 581947)

ADMINISTRATIVE LAW New Competitive Bidding Law for advertising services On 04.30.2010 Act No. 12.232 was published and it provides for competitive bidding and procurement of advertising services by Government. Anatel will end up with cable TV limits In planning for this offer of subscription TV, published in 1997, there is a limit to the number of operators per Municipality in the country. However, the ANATEL Board of Directors decided that this restriction sets a barrier to competition that shall be banned.		Electric energy bill cannot collect PIS and Cofins STJ has applied to electric energy bills, by analogy, the understanding already firmed in that Court that the inclusion and collection of amounts related to PIS and Cofins is unlawful. (REsp 1188674) ISS does not levy on direct merger The collection of Municipal Services Tax in the activity of real estate enterprising, when construction is done by the syndicator in its own land, at his account and risk is not appropriate. As in these cases the purpose is the sale of future completed units, as previously agreed, the construction is a simple way to achieve the ultimate goal of direct enterprising, therefore, there is no event that generate this tax. (REsp 1166039)

		Advance collection of ICMS difference Second Class of STJ deemed that the advance collection of differential rate of ICMS related to procurement of goods from another Federation unit. STJ has already decided that the acceleration with replacement shall, pursuant to Article 155, XII, subitem b, of the Federal Constitution, be disciplined by a supplementary law, which is LC 87/1996. However, the modality without replacement may be disciplined by state statute because the Federal Constitution does not require reservations of supplementary law. (REsp 1172890) Fees are included in the tax foreclosure In repetitive appeal, STJ has established, in relation to the waiver request for embargoes to tax foreclosure of Public Treasury tax credits, for purposes of adherence to tax installment program, that there can be no additional attorney fees. This is because the costs of loss of suit are included in charge of 20% provided in Decree-Law (DL) no 1.025/1969. (REsp 1143320)

Carlos Eduardo Jar (JAR) published in Real Estate Bulletin of the Law Journal the article “Da possibilidade (ou não) da extinção da cláusula de inalienabilidade de bem imóvel constituída através de doação ou testamento” (Possibility (or not) to terminate clause of real estate non-transferability established by means of gift or will).Rodrigo da Fonseca Chauvet (RFC), which is enrolled on Regulation and Competition Master Course, Universidade Cândido Mendes-RJ published in LEX “As atribuições do comitê de credores no processo de recuperação judicial” (Assignments of creditor’s committee in reorganization case).

Nordeste Invest 2010 in Natal-RN

Members Karyna Gaya (KSL) and Daniela Braga (ELA), as well as local Unit coordinator, Carlos Rosenberg (CRJ) attended the 5th edition of Nordeste Invest, considered the largest event of tourism and real estate investments in Brazil.

Civil Milestone of Internet in Brazil

Sílvia Helena Marçal (SIL) and Leonardo Conte Azevedo de Souza (LEO), of Brasília/DF, attended the Seminar organized by Instituto Brasiliense de Direito Público on the first legislation to regulate the use of the Internet in the country.

Taking office of New Board of Director of Brazil Portugal Chamber in Ceará

Member Fernanda Cabral (NAN), Unit coordinator of Fortaleza/CE took office as Legal Director of Brazil Portugal Chamber for the period 2010-2014 in a ceremony at Federation of Industries of State of Ceará (FIEC).

Fiftieth Anniversary of OAB/DF

In May, Member Daniela Ribeiro (RIB) and Silvia Helena Marçal (SIL) attend the celebration of 50 years of OAB/DF.

Intellectual property in Manaus/AM

Unit coordinator, Manoel Duarte Pinto (MDP) attended the workshop “The Importance of Intellectual Property for Brazilian Industry Innovation” held at Federation of Industries of State of Amazonas - FIEAM.

TRIGUEIRO FONTES SCHEDULE 21

Schedule 21 Committee was created, composed of Karla Paiva (KPM), of Salvador, Camilla Ribas (CAM), of Curitiba, and Milene Fernandes, of Executive Secretary, under coordination of Members Juliana Rocha (JOL) and Ana Carolina F. de Melo Brito.

EDITORIAL BOARD formed by the members: Carlos Rosemberg Fernandes Jr. Rodrigo da Fonseca Chauvet and Carlos Eduardo Jar e Silva, coordinated by the member Ana Carolina F. de Melo Brito. The information disclosed herein shall not necessarily represent the opinion of the Office. The disclosure is restricted to the clients of the Office or people related to it. The Disclosure is authorized provided that its source is indicated.

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Anatel will end up with cable TV limits