TRIGUEIRO FONTES - Advogados

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April 2010
Number: XXXXVIV

In this edition, we call attention to the reopening of the Installment Incentive Program (PPI), of the local government of São Paulo, which aims at regulating its tax liability, arising out of tax and non-tax assets, whether assessed or not, including those registered as an overdue tax liability, by reason of facts occurred on December 31st, 2006.

We also highlight Precedent 427 of the Superior Court of Justice (STJ), which provides the five-year limitation period for actions for collection of deficiencies of values in pension.


ADMINISTRATIVE LAW Requirement for statement of qualification in competitions is suspended The STF (Federal Supreme Court) granted a provisional remedy to suspend the effectiveness of § 3 of art. 5 of Ordinance No. 2.814/98, of the Ministry of Health, which requires, for purchases and bidding processes of drugs, that retailers submit a statement of qualification with the company that holds the registration of the products, as well as a statement of liability, ensuring the delivery of such products within the term determined and the quantities provided in the bidding process, since the provisions of the referred paragraph could restrict competition, disregarding the limits of Act No. 8.666/93, in noncompliance with the provisions of art. 37, XXI, of the Federal Constitution. (ADI 4105) CADE may apply a penalty for abuse of right to file suit The Brazilian Antitrust Authority (CADE) acknowledged the possibility of applying a penalty for sham litigation, in which there is abuse of right to file suit so as to restrict competition. (Case No. 08012.004484/2005-51)		TAX LAW STJ grants ten-year limitation period In incident of uniformization, the 1st Section unanimously reversed the appellate decision of the Brazilian Panel of Uniformization of Precedents (TNU) – an agency of the Federal Council of Justice (CJF) – which differed from the opinion of the STJ on the limitation period to request refund of taxes assessed by ratification and illegally collected. The judge-rapporteur of the pleading, Justice Humberto Martins, called attention to precedents of the STJ which considered as impermissible the application of the five-year limitation period for requests for refund of taxes prior to Supplementary Act No. 118/2005. The Justice emphasized that the ten-year limitation period must prevail, even in the events in which the taxpayer filed an action for undue payment after the effectiveness of such Act, provided that the fact which led to the taxation has occurred before it. (PET 5994).

ENVIRONMENTAL LAW Companies in RJ shall install inspection chambers On 03.26.2010, State Act No. 5669 was sanctioned, which prescribes the installation by companies of at least one inspection chamber for each type of effluent within 90 days from the referred date, for purposes of analysis of substances, under penalty of administrative sanctions. State Register of polluting activities in RJ The State Technical Register (CTE) of Activities potentially polluting or using Environmental Resources and the corresponding Rate of State Environmental Control and Supervision (TCFARJ), managed by the Environmental Institute of the State of Rio de Janeiro (INEA), is operating in RJ. Companies in SP shall have recycling goals In accordance with Resolution SMA 24, of March 30th, 2010, the packages of listed products shall be properly disposed by manufacturers, retailers and importers. People in charge of products such as tires, electrical apparatus, packages of foods, hygienic products and durable consumer goods shall create stations for delivery of goods after consumption, as well as instruct consumers and meet the collection goals.		Five-year limitation period shall also be applied to members of a Company After 5 years from the service of process upon a Company, the intervening statute of limitations shall also be applied to its members, according to the 2nd Panel of the STJ, which denied the request for reversal of decision on tax foreclosure action of the State Tax Authority of São Paulo. According to the judge-rapporteur, Justice Eliana Calmon, notwithstanding the fact that the valid service of process suspends the statute of limitation concerning jointly and severally liable parties, in the event of renegotiation of tax foreclosure, the intervening statute of limitations shall be applied after 5 years between the service of process of the Company and the service of process of its members. (AG 1247311) Installment Incentive Program in São Paulo As authorized by Act No. 15.057/2009 and regulated by Decree No. 51.362/2010, the period for joining the Installment Incentive Program provided by Act No. 14.129/2006 was reopened in the fiscal year of 2010. Debts such as IPTU (Urban real state property), ISS (Municipal Services Tax), among other taxes, may be paid at a discount, in addition to debt balances under installment plan in progress, except for those arising from requests ratified by REFIS (Program of Fiscal Recovery), as well as non-tax debts, except for those resulting from traffic tickets, contractual penalties and compensation.

LABOR LAW Appeal Bond out of FGTS account is granted The 8th Panel of the Superior Labor Court (TST) granted the appeal bond out of FGTS account, since it was made by the Company in compliance with Normative Instruction No. 18, which regards as valid the bill evidencing the appeal bond before the Labor Court containing at least the name of the Appellant and the Appellee; the Case Number; the court in which the case along with the value of such appeal bond was prosecuted, provided that authenticated by the Bank receiving such value. (RR-115640-96.2007.5.17.0005) Only employees belonging to a representative trade union are entitled to job security SDI-1 held the decision that the election for union official did not ensure job security for an employee of the Municipal Company of Urbanization (Emurb), of São Paulo. His request was denied by the trial court because the trade union in which he was elected did not have standing to represent the professional category of the Company where he worked. (E-RR - 517016-21.1998.5.02.5555)		CIVIL PROCEDURE Claim shall not concern unappealable decisions The 2nd Section unanimously decided that the preliminary injunction provided by art. 2, I, of Resolution No. 12/2009– which determined the filing of claims for objection of decisions adopted by state small-claims courts against precedents of the STJ – shall not concern decisions which already became unappealable before the small-claims court that adopted such decision, even in the event of cases which were not decided yet. (MC 16568)

PRECEDENTS OF THE STJ PRECEDENT N. 423 The Contribution to Social Security Financing – Cofins is levied on the receipts arising out of leasing of personal property. Judge-rapporteur Eliana Calmon, on 03/10/2010. PRECEDENT N. 424 The levy of ISS on related bank services contained in the list attached to DL n. 406/1968 and LC n. 56/1987 has standing. Judge-rapporteur Eliana Calmon, on 03/10/2010. PRECEDENT N. 425 The withholding of the Contribution to Social Security Financing by the customer shall not be applied to companies that choose Simples. Judge-rapporteur Eliana Calmon, on 03/10/2010. PRECEDENT N. 426 The interest for late payment on the indemnity of DPVAT (Compulsory vehicle liability insurance) shall run as of the service of process. Judge-rapporteur Aldir Passarinho Junior, on 03/10/2010. PRECEDENT N. 427 Actions for collection of deficiencies of values in pension shall be barred by the statute of limitations in five years counted from the date of payment. Judge-rapporteur Aldir Passarinho Junior, on 03/10/2010. PRECEDENT N. 428 The Regional Federal Appellate Court has jurisdiction to settle disputes of jurisdiction between the federal small-claims court and the federal court of the same Judicial District. Judge-rapporteur Luiz Fux, on 03/17/2010. PRECEDENT N. 429 The service of process by mail, when authorized by law, requires return receipt. Judge-rapporteur Luiz Fux, on 03/17/2010.		SOCIAL-SECURITY LAW Social-Security Contribution charged on Transportation Allowance Since the transportation allowance is not part of the salary and is regarded as compensation, not being considered with respect to pension, survivor’s pension and levy of income tax, the en banc Federal Supreme Court decided that the Brazilian Social-Security Institute (INSS) shall not charge social-security contribution levied on the transportation allowance paid in cash. (RE 478410) Jurisdiction to charge contribution of SAT The Labor Court has jurisdiction to charge the contribution of the Occupational Accident Insurance (SAT) owed as a result of its judgments, in accordance with opinion of the 3rd Panel of the TST. According to the judge-rapporteur, the Federal Constitution (item VIII of art. 114) provides the jurisdiction of courts of special jurisdiction for execution in their own initiative of social contributions provided in art. 195, I, a, and II, in addition to legal increases. (RR-48400-10.2005.5.19.0004)

On this month, the article “Licitações no setor portuário do Brasil” (Bidding processes in the Brazilian port industry), written by our member Rodrigo da Fonseca Chauvet, is available on the website www.trigueirofontes.com.br.

Paula Leonor holds lecture in Rio de Janeiro
Paula Leonor Mendes Fernandes Rocha (PFR), from the Unit of Rio de Janeiro/RJ, invited by Central Prática, held a lecture about “Public-interest Civil Actions in the Labor Area” at Hotel Regina, in Rio de Janeiro.

New Unit of TF operating in Manaus-AM
The 11th Unit of TRIGUEIRO FONTES Advogados is operating in the city of Manaus, coordinated by the attorney-at-law Manoel Duarte Pinto. "After 17 years in operation, we did not have a Unit placed at the North Region; it is a dream come true. We are all very happy and eager to provide service to our customers in one of the most successful places of Brazil”, said Roberto Trigueiro Fontes, founder member of the Office.

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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