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April 2009
Number: XXXVII

This month we highlight the ruling of the 2nd Bench of the Higher Court of Justice that revived discussion regarding the expiry date for claiming taxes confirmed by a court of law.

The Special Section on Individual Bargaining (SDI) of the Higher Labor Law Court ruled that document granting power of attorney is not valid if it is signed on behalf of a company without any identification of the company or of its legal representative.


ENVIRONMENTAL LAW Evironmental Damage. Collective Responsibility. The issue under review is the responsibility of the State for environmental damage caused by land occupation and construction, especially in environmental protection areas, such as State Parklands. The Bench ruled that the State does have a collective responsibility, when, in cases where it should act to avert environmental damage, it turns a blind eye or acts in an inappropriate fashion. This responsibility stems from unlawful omission, such as failure to carry out inspection or take other preventive policing measures which, at least indirectly, contributes to environmental damage, especially in so far as environmental policing is not confined to refusal of planning permission, as occurred in this case. It should be borne in mind, however, that this collective responsibility clause does not imply any benefit for the private company or individual causing environmental degradation by their action, to the detriment of the public purse. Thus, without thereby detracting from collective responsibility, it behooves the State—even when it is not directly responsible for the damage and does not benefit from its omission—to seek to recover outstanding sums from those directly responsible, thereby averting an unjust burden being placed on society. On these grounds, appeal was granted. Precedents cited: AgRg in Ag 973.577-SP, DJ 19/12/2008; REsp 604.725-PR, DJ 22/8/2005; AgRg in Ag 822.764-MG, DJ 2/8/2007, and REsp 647.493-SC, DJ 22/10/2007. (REsp 1.071.741-SP)		PROCEDURAL AND CIVIL LAW Third Section of STJ upholds legality of rulings made by Benches with a majority of judges summoned. The court warned, however, judges should be summoned in accordance with the law. According to the new ruling, it being lawful to summon first-degree judges, the power of decision of these judges should be equal to that of an associate justice. The Habeas Corpus ruling was handed down by associate justice Jane Silva. (HC 109456). Family Assets may be partially pledged The 3rd Bench of the Higher Court of Justice came down partially in favor of the Special Appeal to uphold permission to parcel up property to be partially pledged as an asset. The Bench accompanied the ruling handed down by Justice Nancy Andrighi, pointing out, that, before allowing the property to be parceled up, it should be ensured that the property’s original features would be safeguarded and that it would not cause harm to the residential area. (REsp 968907)

LAWBOR LAW Cases of Individual Bargaining not subject to arbitration. In ruling RR nº 795/2006.028.05.00-8, the 3rd Bench of the TST declared inadmissible the use of arbitration to solve individual labor disputes, restricting its application to collective bargaining with trade union representation. According to Justice Alberto Bresciani, the disadvantageous position of an employee entering arbitration should be taken into account, especially in times of economic crisis, such as these.		Third Bench discusses deadlines and values for reimbursement of undue charges In order for there to be reimbursement at a rate of twice the original amount unduly charged to consumers, lack of good faith must be proven. So ruled Justice Nancy Andrighi, when partially denying a São Paulo appeal. The Justice, however, upheld the appeal with regard to the extension of deadlines. The Third Bench of the Higher Court of Justice (STJ) passed the ruling by a majority vote. (REsp 1032952)

Failure to produce document granting power of attorney is not unlawful. In ruling RR nº 1300.2003.093.15.00.0, the 6th Bench of the TST came out in favor of returning cases to the originating Labor Court for judgments regarding suits that have not been declared in default, in cases where the a document granting power of attorney has not been entered into the records. Justice Aloysio Corrêa da Veiga, accompanied by the other justices, argued that there is no legal requirement to produce such a document and explained that this is merely a practice of the court.		TAX LAW STJ revives ten year deadline for claiming taxes Shelved at the beginning of last year by the Higher Court of Justice, the idea of a ten-year deadline for claiming taxes confirmed by a court of law is being aired again. Even with the consolidation, in March 2008 of the justices’ ruling regarding the maximum deadline of five years, a ruling of the 2nd Bench once again challenges taxpayers to combine articles of the National Tax Code and extend this deadline. The ruling which revives the discussion was handed down by the 2nd Bench of the STJ in May by Justice Humberto Martins. The justices unanimously upheld the ruling that the Treasury has the right to claim unpaid debts for up to ten years subsequent to the receipt of the taxable income. (AgRg in INTERLOCUTORY APPEAL Nº 410.358 – SP)

New Jurisprudential Guideline of the SDI – 1 of the TST 373. UNLAWFUL REPRESENTATION. COMPANIES. INVALID POWER OF ATTORNEY. ABSENCE OF IDENTIFICATION OF THE GRANTOR AND REPRESENTATIVE. ART. 654, § 1º, OF THE CIVIL CODE. (DJe pronounced on 10, 11 and 12.03.2009) A document granting power of attorney holds no validity if it is signed on behalf of an unidentified company or does not identify the legal representative thereof, which, as outlined in Art. 654, § 1º, of the Civil Code, means that the party does not have legal representation according to the court record.		Partner of a company indebted to the Treasury has the right to a certificate of debt-free status The 8th Bench of the TRF of the 1st Region, ruled, on a majority vote, on the casting vote of the Federal Prosecutor, Maria do Carmo Cardoso, that it is unlawful to refuse to issue a certificate of debt free status to a partner of an indebted company, in cases where this partner has no personal responsibility. The ruling acknowledged that there was no due proof regarding the subjective aspects of the act—i.e. the intention of the administrator to do harm to the State, so far as tax obligations are concerned, which is the responsibility of the company. The presumption did not prevail in cases where there is proof of the partner have acted in contravention of the social contract or the law in such away as to be held responsible for the failure to comply with social obligations. (MS nº 2005.35.00.009122-4/GO – TRF-1)

		Compensation for Damages and Law 8.981/95 In its final majority ruling, the Court ruled out an appeal to the Supreme Court lodged against the verdict of the TRF of the 4th Region, which recognizes the validity of limiting compensation falling on real profits, as well as limiting compensation for establishing the basis for the calculation of social security contributions, as laid out in Articles 42 and 58 of Executive Order 812/94, later Law 8.981/95. It was understood that the law under investigation aimed to ensure the companies have a tax benefit to make it possible for them to provide compensation for damages from previous periods. (RE-344994)

This month the article, “The State´s 2nd Republican compact and the effectiveness of judgement” by our colleague,Karyna Saraiva Leão Gaya, is available for consultation at www.trigueirofontes.com.br”

Roberto Trigueiro Fontes at the official opening of the new AMCHAM head office in Recife

Current honorary counsel of the American Chamber of Commerce in Recife/PE, Roberto Trigueiro Fontes (who was president in 2004/2007) attended the official opening of the new head office in the capital of the State of Pernambuco. In addition to many local leaders and associates, the event was attended by the current president of AMCHAM/PE, Mr. Luís Delfim, and the CEO of AMCHAM Brazil, Mr. Gabriel Rico.

Trigueiro Fontes Lawyer participate in the 9th Symposium on Constitutional Tax Law, in the city of Salvador

Henrique de Oliveira (HSO) and Maurício Neumann (MAN), from our Salvador office, participated in the “9th Constitutional Tax Law Symposium”. The event was held on the premises of the Pestana Hotel in the city of Salvador and was attended by dignitaries from across the country. Special homage was paid on the occasion of the hundredth anniversary of the birth of the jurist, Orlando Gomes.

Daniela Braga Guimarães was one of the debaters at Nordeste Invest 2009.

Daniela Guimarães was one of the debaters at the “1st Forum for Lawyers Specializing in Investment in Real Estate and Tourism ", an event staged as part of the program of Nordeste Invest 2009, which addressed issues such as legal security, fiscal efficiency and new business models for real estate firms.

Professional Development is the Norm at Trigueiro Fontes!

All staff members are committed to ongoing Professional development. To mention only the most recent courses undertaken, in São Paulo, Fábio de Possídio Egasheira, the office´s Head of Civil Law and Arbitration, this year began his fourth post-graduate course, this time in Civil Process Law, at the Pontifical Catholic University of São Paulo (PUC-SP), while Tatiana Goulart de A. Macedo and Acácio Oliveira de Macedo Jr. have begun a post-graduate degree in Labor Law at the University Outreach Center (CEU). In Rio de Janeiro, Paula Leonor Mendes F. Rocha has begun a course in welfare Law at the Cândido Mendes University (UCAM). In Salvador, Daniela Ruth Cabral Espinheira, a partner and coordinator of the Office in that city, has begun a post-graduate course in Labor Law, at the Law Faculty Foundation. Ana Carolina F. de Melo Brito and Karyna Saraiva Leão Gaya, are also undertaking post-graduate studies, in Environmental and Civil Process Law, respectively.

Trigueiro Fontes at the Complementary Social Security Seminar, in Rio de Janeiro.

Ana Paula Sá Borges (APS) and Paula Leonor Mendes da Rocha (PRF), from our Rio de Janeiro Regional Office, took part in the 1st Complementary Social Security Seminar – The Legal Challenges of Regulation and Social Security Education, run by OAB/RJ and sponsored by Brasilcap.

EDITORIAL BOARD composed of members Vanessa Arruda, Antônio Carlos Acioli and Luiz Gustavo Meira Moser, coordinated by partner Ana Carolina Brito.

The information disclosed herein does not necessarily represent the Firm's opinion. Disclosure limited to the Firm's Client's or persons connected thereto. Disclosure authorized subject to indication or origin.

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