TRIGUEIRO FONTES - Advogados

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November 2009
Number: XXXXIV

On the November’s edition, one important issue is the roundtable where the Federal Supreme Court (STF) will address the possibility of refunding companies included in the tax replacement regime the ICMS (Tax on Circulation of Goods and Services). The matter, one of the biggest disputes in progress in that Court, will be judged under general repercussion.

As the end of another year is near at hand, TRIGUEIRO FONTES promoted the traditional annual meeting of the Office, where the members discussed internal matters and outlined the goals for the next year. At the meeting, three new members were also elected.


TAX LAW Exporters to adapt to new system Under the penalty of being unable to use the accrued credit as of January 1st, 2010, exporter companies must comply with the terms of CAT Ordinance No. 83, which instituted the “System for Calculation of ICMS Related to the Cost of Outputs of Goods and Provision of Services”. This system is earmarked for the calculation of the accrued credit generated under the terms of Article 71 of Regulation of Taxes on the Transactions Related to the Circulation of Goods and Provision of Interstate or Intercity Transportation and Communication Services, approved by Decree No. 45,490, dated November 30th, 2000, for the purpose of recording and use of accrued credit. Tax Replacement The action under analysis by the Supreme Court was brought by an oil industry company against the State of Minas Gerais, in which it challenges the amounts of taxes overpaid in the tax replacement regime. Although already pending before such Court, the analysis of a direct action for the declaration of unconstitutionality (Adin) involving the State of Sao Paulo, the repercussion attributed to the appeal must make the trial of the subject to be resumed, now with a different Court’s bench. In the case of Adin, the score is tied at five to five, in a dispute amounting to at least BRL 2 billions (two billions Brazilian Reais) — for the State of Sao Paulo alone.		Supreme Court approves five (5) new Binding Abridgements Binding Abridgement No. 32 – Interest on arrears in demand: “During the period of the first paragraph of Article 100 of the Constitution, do not focus interests on arrears on the demands which are paid”. Binding Abridgement No. 36 – Ex-spouses disqualification: “Company or marriage bond dissolution, in the course of the term of office, does not preclude the disqualification under §7º of Article 14 of the Constitution”. Binding Abridgement No. 40 – Garbage collection rate: “The FEE solely charged on the grounds of public garbage or waste collection, removal and treatment or disposal from buildings that were not contrary to Art. 145, II of the Constitution”. Binding Abridgement No. 42 – GDATA: “Technical and Administrative Activity Incentive Bonus– GDATA, by Law 10.404/2002, to be inactive in the accepted values to 37.5 (thirty-seven point five) points from February to May 2002 and, pursuant to Art. 5, sole paragraph, of Law 10.404/2002, from June 2002 until the conclusion of the effects of the last cycle of assessment referred to Art. 1 of the Provisional Measure 198/2004, from which to be sixty (60) points”. Binding Abridgement No. 21 – Prior Deposit: “The requirement of prior money and goods deposit or enrollment for admissibility of administrative appeal”.

PROCEDURAL AND CIVIL LAW STJ ‘s Precedent 402: “The insurance cover for personal injury includes damage, unless there is express provision for exclusion”. 403: “It is not dependent of evidence of failure to indemnify for unauthorized publication of image of people with economic or commercial purposes” 404: “AR in the letter of communication to the consumer about the exclusion of its name in databases and registries is expandable” 405: “The action of collecting the compulsory insurance (DPVAT) prescribes in three years” 406: “Lower Treasury may refuse to replace the pledged goods on demand” 407: “Charging the water is legitimate, determined in accordance to the categories of users and usage ranges”. 408: “In the actions of expropriation, the pertinent compensation interests upon the Decree Law No. 1.577, of 06/11/1997, will be set at 6% (six percent) per year until 09/13/2001, and thereafter, 12% (twelve percent) a year, according to the summary paragraph No. 618 of the Supreme Court”. 409: “In tax foreclosure, the limitation period before action bringing suit may be enacted by official letter”.		Interests on late payments on attorney’s fees incur from the res judicata The First Panel from the Supreme Court decided that the default interest concern the calculation of attorney’s fees from the res judicata of the edges or the sentence in which it has been fixed. (REsp 771029) TJRS convicts those who unduly asked for gratuity The 2nd TJRS Special Civil Chamber sustained the understanding of 19th Civil Court Judge of Porto Alegre-RS, for where the application of the quality of being free of charge the proceeding costs is made by whom is not entitled to receive the benefit, interests will be fined as a moralize way of granting this benefit, in which case has ordered the plaintiff to pay the costs double. However, the judged dismissing the ruling has not been published. (Grant No. 70030848634) LAWBOR LAW Resignation the day before candidacy Worker fired one day before filing his candidacy for union leader has no right to employment stability guaranteed by the Constitution. With this understanding, the 4th Panel of the Superior Labor Court (TST) has accepted a bill of review and reformed sentence, confirmed by the Regional Labor Court (TRT) of the 11th Region, against the reinstatement of an employee (RR-1223/2007-003-11-00.8)

Income tax refund on current account may be pledged 3rd Panel of the Supreme Court in the Trial of REsp 1059781, recognized the possibility of pledging deposited amount in the taxpayer checking account in respect of the income tax (IR) refund. The unanimous decision followed the understanding of the reporting judge, minister Nancy Andrighi, for whom, in compliance with the principle of effectiveness, it does not appear reasonable, in situations where there is no commitment to maintain the dignity of the executed, which the creditor may not be satisfied to its credit facility, under the argument that the income provided for in Article 649, paragraph IV, of the Civil Procedure Code (CPC) would enjoy absolute immunity from pledge. Supreme Court Resolution on electronic process Supreme Court Resolution 417/2009provides, in Article 21, which as of 1.31.2010 all acts and parts relating to classes of procedures therein will only be received by electronic means. Therefore, form January, Extraordinary Appeal (RE); Binding Abridgement Proposal (PSV); Direct Unconstitutional Act (ADI); Declaratory Constitutionality Action (ADC); Direct Unconstitutionality Action by Default (ADO); Petition for Noncompliance of Fundamental Measure (ADPF) and Complaint, will be received only by electronic means.		ENVIRONMENTAL LAW Pollutant Company is obligated to prove innocence STJ is innovating the Law on the environmental and, based on the Principle of Prudence, granted to the PM the reversal of the burden of the proof. The theory was accepted by the Minister Eliana Calmon, Who as well based her vote: “In the case of civil environmental actions, I understand that the public and collective character of the legal ward leads us to conclude that some of consumer’s rights must also be extended to the author of those actions, after all those seeking to protect or repair the public property of collective use. Therefore, from the construction of Article 6 of Act No. 8.078/1990 and Article 21 of Act No. 7.347/1985, combined with Principle of Prudence, justified the reversal of the burden of proof, transferring to the potentially dangerous activity’s entrepreneur, the burden of evidence the project security. It is noteworthy that the company’s obligation to prove it may not be mistook with Provisory Measure’s duty to bear the examination fees of the evidence that the own agency requests to enforce the reporting of environmental damage.

This month, the Articles “Two short notes on purchasing of rural property”, written by Manoel Duarte Pinto, “Electricity, ICMS and the principle of selectivity”, written by Maurício Neumann, “Succession planning: a healthy concern for the future”, written by Karyna Saraiva Leão Gaya and “Responsibilities of the committee of creditors in the process of court-supervised reorganization”, written by Rodrigo da Fonseca Chauvet, may be read in www.trigueirofontes.com.br

Shareholders’ Ordinary Meeting

TRIGUEIRO FONTES’ ordinary meeting was held from November 5th to 8th, where members discussed internal matters of the Firm and outlined the goals for the next year. The meeting also elected the new members of the Office: Fernanda Cabral de Almeida Gonçalves (NAN), coordinator of UR-FOR; Viviane Moreno Lopes (VIV), tax disciplinary proofreader and Daniela Rondinelli Capani (RDC), corporate / real estate disciplinary proofreader.

Seminar about the new REFIS, in FIESP/CIESP

Viviane Moreno Lopes (VIV), Trigueiro Fontes Advogados’ tax reviewer, attended the seminar sponsored by FIESP / CIESP to discuss the new REFIS – Tax Recovery Program. The present authorities also committed themselves to examine and regulate other issues that still do not have enough clarity in the disclosed rules. The deadline for membership is still opened and, upon the admission and the payment of the first installment, the company will be immediately entitled to Negative Certificates of Tax Debts.

V Meeting of Corporate Business in Portuguese, in Fortaleza/CE.

Fernanda Cabral (NAN) and Manoel Duarte (MDP), members of the Regional Unit in Regional de Fortaleza/CE, attended the Fifth Business of Corporate Business in Portuguese (VEENLP), which brought together players from 23 countries, with several diplomatic and business authorities. At the meeting, five main themes (tourism, infrastructure, natural resources, agribusiness and technological innovation) have been discussed through lectures and rounds of negotiations.

Seminar about “Trade and Services", in Natal/RN

Juliana Melo Boaz Pinheiro (JUB) and Polyanna Alves de Oliveira (LYA), both members of Trigueiro Fontes Advogados in the unit of Natal, attended the Seminar organized by the Jornal Tribuna do Norte, FIERN, FECOMERCIO/RN and RG Salamanca Investimentos, whose theme was ‘Trade and Services'.

EDITORIAL BOARD formed by: Antônio Carlos Acioli, Carlos Rosemberg Fernandes Jr. and Rodrigo da Fonseca Chauvet, coordinated by member Ana Ana Carolina F. de Melo Brito. Information disclosed herein does not necessarily represent the views of the Firm. Disclosure restricted to clients of the Firm or persons connected to it. Disclosure authorized so long as source is mentioned.

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