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October 2009
Number: XXXXIII

The highlight of this month’s newsletter is the annulment of Abridgement 366, the drawing up of new abridgements and the establishment of judicial precedent by the Higher Court of Justice (STJ) in another six repeated appeals.

The STJ used the Law of Repeated Appeals to rule on: whether income tax is payable on monies paid for severance of an employment contract without due motive, whether the COFINS tax is payable on the rent of movable goods (REsp 929.521), adjustments for inflation calculating the corrected monetary value of the balance of accounts linked to the FGTS, crediting of the IPI on the acquisition of intermediate industrial materials (REsp 107.550-8), the possibility of applying the extended interpretation of bank services (REsp 111.123-4) and whether the ICMS is payable on financial charges included in sales (REsp 110.646-2).

In the field of Family and Probate Law, it is worth mentioning the ruling handed down by the Third Bench of the STJ, which establishes that it is legitimate to include the estate of a deceased partner in the process of acknowledging the dissolution of marriage.


TAX LAW The Federal Government must pay for undue tax foreclosure lawsuits The 1st section of the STJ, ruling on multiple appeals, ordered the Treasury to pay legal fees incurred as a result of undue tax foreclosure lawsuits. In such cases, when the record of the outstanding debt has been removed and the debtor has already been notified, even when no reply has been received, the closing of the case implies that the Treasury must pay the court costs. (REsp 1111002) STJ rules on whether income tax is payable in cases of break of employment contract In a special (repeated) appeal, which questioned whether income tax should be paid on compensation received for break of employment contract, it was ruled that, in cases of break of employment contract, income tax is not payable when the monies are paid by the employer as a matter of good will. (REsp 1112745) STJ rules it legitimate to charge the fixed water rate on a sliding scale The ruling handed down by the 1st Section of the STJ states that action taken to recover monies paid unduly are subject to the limitation deadline stated in the Civil Code. Justice Teori Albino Zavascki pointed out that the jurisprudence of both Benches of the First Section, which is responsible for rulings involving public law, already makes it clear that it is legitimate to charge for water supply services on a sliding scale, in accordance with the different categories of user and water consumption bands and that this is in the public interest, since it encourages rational use of water resources. (REsp 1113403)		STJ ABRIDGEMENTS 391 – “The ICMS tax is payable on electricity bills in accordance with the quantity of energy in fact used”. 392 – “The Treasury may issue a revised certificate of outstanding debt (CDA) at any time up to the rendition of judgment, in cases of correction of material or formal error, although altering the name of the debtor is prohibited”. 393 - "A claim of exception is admissable in fiscal pleas relating to written evidence when probative continuance is not required". 394 - "It is admissable, in stays of tax foreclusure, to reimburse income tax unduly collected at source using the system for claiming back income tax already paid in the annual tax returns”. 395 – “The ICMS tax is payable on the value of sale within the deadline stated on the invoice”. 396 - "The National Confederation of Agriculture may charge the rural trade union fee”. 397 - " IPTU tax-payers are notified as to when the tax is due by way of a payment booklet delivered to their address”. 398 – “Limitation of action to claim compound interest on the balance of accounts linked to the FGTS does not effect the base fund, but is restricted to back payments”. 399 – “The municipal legislature is responsible for establishing who is liable to pay the IPTU tax”. 400 - “the extra charge of 20% laid out in DL n. 1.025/1969 may be made in tax foreclosure proposed in cases of bankrupcy”. 401 – “The laches deadline for rescissory action is counted only from the point in time as of which no further appeal may be lodged against a judicial ruling”.

PROCEDURAL AND CIVIL LAW STJ consolidates ruling on adjustment for inflation The 1st Section of the STJ consolidated its ruling on adjustments for inflation when calculating the monetary correction of the balance of accounts linked to the FGTS. The Section restated that the initial period for the monetary correction should be set at the time when the debt is incurred, that is, from the date on which adjustment for inflation should have been applied to the calculation of the adjusted monetary value of the balance of accounts linked to the FGTS, and not from the date of the summons. (REsp 111.241-3)		FAMILY AND PROBATE LAW An estate is a legitimate party in dissolution of marriage The unanimous conclusion of the Third Bench of the STJ, as pronounced by Justice Nancy Andrighi, was to reject a special appeal against the alleged ex-partner of a deceased. Legal action to ensure acknowledgement of the dissolution of a common law marriage was taken by the alleged partner of the deceased against the estate. The estate contested the request, alleging the illegitimacy of the party, arguing that the legitimate parties in the case were the heirs and not the estate. The justice added that the case only referred to the capacity to respond to legal action of the heirs or the estate, which does have the legal capacity, both active and passive, to respond to this kind of action. (REsp 1080614)

Alteration to the Consumer Rights Code Law nº 12.039, which came into effect on 1o.10.2009, altered the Consumer Rights Code by inserting article 42-A, decreeing that all documents issued to claim back debts should contain the name, address and CPF or CNPJ number of the supplier of the respective goods or services. Products with a bar code need not have price labels With the coming into effect of Law n. 10.962/2004, various ways of providing information regarding the price of goods for sale are permitted. The said law should be considered by the STJ. The supermarket appealing in this case is thus not obliged to attach individual price labels to products on sale, so long as they have adopted a bar code system (art. 2º, II, single paragraph, of aforementioned law). Precedents cited: REsp 663.969-RJ, DJ 2/6/2006; REsp 614.771-DF, DJ 1º/2/2006, and REsp 688.151-MG, DJ 8/8/2005. (REsp 813.626-MG)		LABOUR LAW Jus postulandi does not apply to appeals lodged at the TST. The Plenum of the Higher Court of Labor Law (TST), has ruled, by a vote of 17 to 7, to deny jus postulandi at the TST, thereby requiring that a lawyer be contracted to lodge appeals at this court, allowing the employer to be absent only on the 1st and 2nd occasions. The plenum understood that, in an extraordinary case, there is no more discussion of the facts of the matter and the evidence and the presence of a legal expert is therefore needed to ensure that the TST is able to deliberate effectively on the case. (E-AIRR and RR nº 85581/03-900.02.00-5) Company directors do not have the power to install cameras in staff rest rooms In ruling RR nº 1263.2003.044.03.00-5, the First Bench of the TST ordered a company to pay compensation for moral damages for installing video cameras in the company’s staff rest rooms. The ruling granted compensation for moral damages on the grounds that this constituted excessive surveillance on the part of the company, thereby violating the employee’s right to privacy.

		TST applies Labor Law Code norms to employee providing services abroad In ruling RR 1521.2004.014.06.00-6, the First Bench of the TST acknowledged that the Labor Law Code applies to an employee contracted in Brazil who provided services in this country and was subsequently transferred abroad. Justice Lélio Bentes stated that the principle of Lex Loci Executionis applies “when an employee is contracted in Brazil for the express purpose of providing services abroad, which is not the case here, where the employee was contracted in Brazil and provided services in this country before being transferred abroad”. The ruling is based on Abridgement 207 of the TST’s SDI -1, which deals with conflicts between labor laws from different regions. A Compulsory deposit in the Central Bank is non-forfeitable In view of RXOF and ROMS – 978.2005.000.15.00-2, the TST’s SDI-2, following the regulations of the National Monetary Council, decreed that a compulsory deposit made to pay off labor law debts may not be forfeited. Justice Renato de Lacerda Paiva, citing Abridgement 328 of the STJ, ruled that Law nº 9.069/95 defended the non-forfeitable nature of such monies held in the reserves of the Central Bank.

This month, “THE CHALLENGES OF THE 2014 WORLD CUP FOR BRAZIL”, by Fernanda Cabral de Almeida Gonçalves, “FIRST IMPRESSIONS OF THE NEW LAW OF INJUNCTION AND THE PRINCIPAL OF THE COURT”, by Gilvando Furtado de Figueiredo Junior, “ABUSE OF THE RIGHT TO DEFENCE COUNCIL AND THE POSSIBILITY OF GRANTING ANTICIPATORY WARD OF COURT STATUS EX OFFICIO", by Haline Fernandes Silva da Hora and “THE BINDING JUDICIAL PRECEDENT AND WHAT IT MEANS FOR THE DEMOCRATIC STATE OF LAW”, by Yvila Maria Pitombeira Macedo can be consulted on our website www.trigueirofontes.com.br.

Seminar on Mediation and Arbitration in Belo Horizonte/MG

Fábio Catão (FHC), the partner responsible for Trigueiro Fontes’ Belo Horizonte office, and Silvania Gouveia (NIA) took part in the 1st Seminar on Mediation and Arbitration, held by the Mediation and Arbitration Commission of the Minas Gerais branch of the Organization of Brazilian Lawyers OAB/MG, Belo Horizonte Section.

Paula Leonor gives talk in Rio de Janeiro

Paula Leonor Mendes Fernandes Rocha (PFR), a member of our Rio de Janeiro team, was invited by Central Prática to talk at the 'Seminar on Controversial Features of Labor Lawsuits ', held at the Regina Hotel, in Rio de Janeiro. Paula Leonor addressed the issue of social security contributions arising from agreements and social security contributions arising from court orders.

Yvila Macêdo attends conference in Fortaleza/CE

Yvila Macêdo (YVI), a member of Fortaleza team, in the State of Ceará, took part in the "Ist National Conference on Constitutional, Material and Procedural Labor Law ", in Fortaleza. The event addressed the issue of “Fundamental Rights and the Economic Climate”.

Carlos Rosemberg (CRJ) begins post-graduate course in social security law.

Carlos Rosemberg (CRJ), from our Natal office, has begun a diploma in Social Security Law at the Luiz Flávio Gomes Teaching Network (LFG) and the Institute of Public Law (IDP).

EDITORIAL BOARD composed of members Antônio Carlos Acioli, Carlos Rosemberg Fernandes Jr. e Rodrigo da Fonseca Chauvet, 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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