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February 2010
Number: XXXXVII

In this presentation, we inform the decision taken by our Regional Unit of Ceará, in order to prevent the seizure of goods and charge of tax rate differential of ICMS (State Goods and Services Tax) in the workstations of the Department of Finance (SEFAZ), when such goods enter into the referred State. The practice, which has been adopted by the tax workstations of SEFAZ, aims at issuing a tax collection document (DAE), compelling the taxpayer to immediately pay the tax in order to have the goods released.

However, the court system of Ceará, in compliance with precedent No. 323 of the Federal Supreme Court (STF), made an important decision, which determines that any act of seizure of goods in order to compel the taxpayer to pay a tax is illegal. It also considered as inappropriate to charge a tax rate differential of ICMS, set out by the State Decree of Ceará No. 29.817/2009, when the recipients of the goods which enter into Ceará do not pay such tax.


PROCEDURAL LAW Federal Supreme Court - Decision made by judges lawfully called shall be valid. The Federal Supreme Court considers, since March of last year, that the decision made by second-degree panel or chamber formed by the majority of judges called shall be valid, provided that such call was made in accordance with law. Exceptions concerning the non-suspension of such court decisions are only made in special situations, as in case of non-compliance with "legally instituted rule" or federal and state legal guidelines. (HC 159433). Mere authorization of guarantee does not make the spouse a guarantor The Fifth Panel of the Federal Supreme Court unanimously decided that the guarantee, whose validity depends on the consent of one of the spouses, when given by a person married under community property regime, shall not be regarded as joint guarantee, which is verified when both spouses are guarantors. The issue was determined by special appeal filed by his wife, who signed the lease agreement in order to be in compliance with the guarantee given by her husband. (Resp 1038774)		TAX LAW Federal Supreme Court declares Funrural unconstitutional By unanimous vote, the en banc Federal Supreme Court declared Article 1 of Law 8.540/92 unconstitutional, which provides the collection of contributions to the Assistance Fund for Rural Workers (Funrural) on the gross revenue arising from the sales of employer’s rural production. The decision relieves the withholding and collection of social contribution by subrogation on the gross revenue arising from the sales of employer’s rural production, natural people, suppliers of cattle for slaughter. This release is a consequence of the declaration of unconstitutionality of Article 1 of Law 8.540/92, which introduced new wording to Articles 12, items V and VII; 25, items I and II, and 30, item IV, of Law No. 8.212/91 (General Law of Social Security), updated until Law 9.528/97, which amended it. The decision shall be in force until new legislation, based on the Constitutional Amendment No. 20/98 (which amends the social security system), provides the contribution. (RE 363852) Decree which reduces tax rate of Cide is published The decree which reduces the Contribution of Intervention in the economy (Cide) of gasoline in R$ 0.08 per liter up to April 30th was published, on 2.5.2010, in the Federal Register. The tax rate of Cide applied to gasoline goes now from R$ 0.23 to R$ 0.15 per liter. According to the Ministry of Finance, the temporary change in the percentage of the mixture of anhydrous ethanol in gasoline, from 25% to 20%, could raise the price of gasoline. With the measure, the Ministry expects the price to be stabilized. In 2008, when the price of gasoline rose, the government also reduced the price of Cide in order to counteract the rise. The announcement of the reduction was made on Tuesday (2/2) by the Minister of Finance, Guido Mantega. Back to Back and the Federal Revenue Service The Brazilian Federal Revenue Service usually charges both the import tax and PIS and COFINS on the billing concerning the operation known as back to back (denying the exemption provided for the export of goods). There is an undeniable incoherence in such position, because now it admits that the operation is regarded as import and now it denies such fact. Thus, preventive and repetitive actions are viable and have been approved in court.

Precedents of the Federal Supreme Court Precedent 28: "The requirement of previous deposit as a condition for appealability of a lawsuit in which it is intended to discuss the enforceability of the tax liability is unconstitutional." Precedent 29: "It is constitutional to adopt one or more elements from the tax base on the calculation of the rate value, provided that there is no complete identity between a tax base and another." Precedent 30: "Any state law which, as a tax incentive, withholds installments of the ICMS which belongs to the municipalities is unconstitutional.		ADMINISTRATIVE LAW Companies cannot claim protection of public good Private companies have no standing to claim protection in court on public good of common use. Only the Government may claim protection of such goods. This is the opinion of Judge Wagner Plaza Machado Junior, of the Judicial District of Alto Araguaia (MT). He considered as defective the claim of a company for the release of BR-364, where truck drivers were doing a demonstration. In accordance with Article 295, II of the Code of Civil Procedure, the judge decided that the plaintiff is not entitled to such right. The highway is a public good, therefore, it is regarded as a common use good on equal conditions. "Therefore, the plaintiff is not entitled to claim protection in court on public good of common use, since only the Government may claim protection of such goods," he determined. (Case No. 28775)

LABOR LAW Preliminary Injunction suspends the reinstatement of tax adviser of trade union Based on the position adopted by courts No. 365, which settled such position so that the job security provided in Article 543, paragraph 3, of the CLT (Consolidation of Labor Laws), and Article 8, VIII of the Federal Constitution, is not applicable to members of the trade union audit committee, the President of the Superior Labor Court granted a preliminary injunction, making ineffective the decision of the TRT-22nd Region, which had decided to reinstate the ex-employee because of his office as a tax adviser of the Trade Union. After emphasizing that the issue is already a settled precedent of the Superior Labor Court, the Minister Moura França noted that, if implemented, the determination of immediate reinstatement could cause damages of difficult redress to the company, "because of the obvious difficulty to redress the payments made." (CauInom 342-40.2010.5.00.0000) Impossible to plead limitation of action for the first time in appellee’s brief The Judicial District I on employment disputes of the Superior Labor Court unanimously decided that it is not possible to plead limitation of action, for the first time, in appellee’s brief. With this interpretation, the en banc court denied the appeal of the State of Paraná against ex-employee in which the issue had been discussed. The judge-rapporteur called for the case, Douglas Alencar Rodrigues, argued that if the limitation of action is only pleaded in appellee’s brief, the appellant will be unable to plead and prove a possible cause of interruption or suspension of the period of limitation, since the plaintiff does not make a statement on the appellee’s brief. (E-RR-431/2002-069-09-00.8)		SOCIAL SECURITY LAW Law which provides 2 extra months of maternity leave is in force. Law No. 11.770/08 provides the benefit to employees of companies that file the income tax return by taxable income, which excludes companies that pay for the presumptive profit or choose the Simples (Integrated System of Payment of Taxes and Contributions of Small and Very Small Business). About 150 thousand companies file the income tax return by taxable income, which covers nearly half of private sector employees. The rule also provides paid leave of 60 days to the employees who adopt or obtain legal custody for purposes of adopting a child, provided that the child has up to one year old. If the child is from one to four years old, the leave shall be of 30 days, and the period is reduced to 15 days in case of child between four and eight years old. Decree No. 6957/2009 and change of tax rates of SAT The decree, issued by the Ministry of Social Security, changes the calculation of the tax rate of the Occupational Accident Insurance (SAT) from the calculation of the Accident Prevention Factor (FAP) linked to the classification of the risk factor of the company. The change resulted in increase of up to 100% in the rate paid by companies. The judge Ricardo Uberto Rodrigues, of the 1st Federal Court of São Bernardo do Campo, declared the rule unconstitutional, arguing that the Federal Supreme Court has already decided that the classification of the companies concerning the risks of their work environment is constitutional, but not the fixing of tax rates concerning the contribution. (Proc. nº 2009.61.14.009724-0)

In this month, the article “CONCESSION PROJECT FOR THE "ROAD SYSTEM OF THE WEST" (AND THE BRIDGE SALVADOR-ITAPARICA)”,written by our member Henrique Silva de Oliveira, is available on the website www.trigueirofontes.com.br.

ANA is appointed as president of the Board of Law firms in OAB (Brazilian Bar Association)-PE

The member Ana Carolina de Melo Brito was appointed by the President of OAB-PE to lead the Board of Law Firms of the referred District, whose main duty is the registration of new companies and corporate amendments of the law firms.

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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