TJGO - Unconstitutionality of State of Goiás laws that address the State fund against poverty - PDF

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Dear Readers: The purpose of this Tax Bulletin aims to update our customers and other interested parties on the major issues being discussed and decided within Judiciary, Legislative and Executive level.

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Dear Readers: The purpose of this Tax Bulletin aims to update our customers and other interested parties on the major issues being discussed and decided within Judiciary, Legislative and Executive level. In this 85 th issue, we address 9 different issues related to Jurisprudence, Regulations and Consultation Solutions. To directly access each texts, click on: Jurisprudence STF - Validates the constitutionality of direct access from tax authorities to taxpayers transactions without prior judicial authorization STF - Injunction suspends the Confaz (National Council for Treasury Policies) agreement clause regarding ICMS (Tax on Circulation of Goods and Transportation and Communication Services) on e-commerce transactions STF - Plenary session decides that IPI (Tax on Manufactured Products) is payable on car imports by individuals STF - The applicability of IOF (Tax on Financial Transactions) on the transfer of shares is declared constitutional by the STF Plenary session TRF4 - Formal error when completing the DARF (Federal Revenue Payment Form) does not preclude the grant of installment-based tax payment or the issuance of a tax compliance certificate TRF4 - The 50% fine established in Section 74 (15 and 17) of law number /96 in case of rejection of applications for PER/DECOMPs (Electronic Application for Reimbursement Compensation or Return and Settlement Declaration) is declared unconstitutional TJGO - Unconstitutionality of State of Goiás laws that address the State fund against poverty Regulations and Consultation Solutions Consultation Solution DISIT/SRRF05 number Substitute Social Security contribution based on CNAE (National Business Activity Classification) Consultation Solution COSIT (General Coordinator s Office for the Tax System) number 02/ Customs Control of Imports - Administrative Tax-Related Fine Law number / Amendments to the New Code of Civil Procedure Consultation Solution COSIT number 3/ Corporate Income Tax/Social Contribution on Net Earnings (IRPJ/CSLL) - Premium Dispute Solution number 06/15 - IRRF (Withholding Income Tax) and CIDE (Contribution for Intervention in the Economic Domain) - Payment of Share Capital in a Brazilian Corporation by Non-Residents through Assignment of Rights (Know-How) RFB Normative Instruction number 1.613/ Individual Income Tax (IRPF) - Annual Adjustment Statement Decree law number 8.660/ Convention Abolishing the Requirement of Legalization for Foreign Public Documents. Souza, Schneider, Pugliese and Sztokfisz Advogados law firm is at the disposal of our clients to clarify any questions about the issues addressed in this publication. We wish you a good reading! Jurisprudence STF - Validates the constitutionality of direct access from tax authorities to taxpayers transactions without prior judicial authorization On 2/24/2015, the Federal Supreme Court completed the joint trial of the Extraordinary Appeal (RE) number (General Repercussion acknowledge) and the Direct Unconstitutionality Actions (ADIs) numbers. 2390, 2386, 2397 and 2859, and, by majority vote, has decided for the constitutionality of the provisions of the Complementaryact(LC) number. 105/2001, which allow direct access of the tax authorities to banking information of taxpayers without prior court order. In short, the opinion that bank secrecy is not absolute in nature has prevailed, since banking information is required for the supervision and tax collection activity, and there are several rules requiring the tax authorities to preserve the information confidentiality. Please note that the understanding established by the Supreme Court at end of the trial may also be applied to other authorities responsible for collecting taxes at the State and local levels. Thus, all justices who stood for the constitutionality of the Complementary law emphasized the need for States and municipalities to establish specific regulations for access to taxpayers banking data, on bases similar to those set forth in Decree law number. 3724/2001. STF - Injunction suspends the Confaz (National Council for Treasury Policies) agreement clause regarding ICMS (Tax on Circulation of Goods and Transportation and Communication Services) on e-commerce transactions. On 02/17/2016, Justice Dias Toffoli, rapporteur of the Direct Unconstitutionality Action (ADI) number. 5464, filed by the Federal Council of the Brazilian Bar Association (CFOAB) against Clause Nine of the ICMS (Tax on Circulation of Goods and Transportation and Communication Services) Agreement Number. 93/2015, issued by the CONFAZ (National Council for Treasury Policy) granted an injunction suspending the effectiveness of the aforementioned clause, which addresses the applicability of the ICMS to e-commerce transactions. According to the opinion of Justice Dias Toffoli, the rule issued by CONFAZ establish obligations that, besides to directly impact such transactions, threaten the operation of companies using the SIMPLES (Simplified Tax Regime) and trespass the field reserved to Complementary laws (LC), given that Simples is regulated by LC Number. 123/2006. Finally, the Justice also noted that the entire ICMS Agreement 93/2015 is the subject of the ADI Number filed by the Brazilian Electronic Commerce Association (Abcomm), of which he is also the rapporteur, thus we must expect new decisions like this one, which directly impact the Electronic Commerce industry. STF - The applicability of IOF (Tax on Financial Transactions) on the transfer of shares is declared constitutional by the STF Plenary session On 2/4/2016, the Plenary Session of the Federal Supreme Court reviewed on Extraordinary Appeal (RE) number /SP, with general repercussion acknowledged, and has unanimously decided for the 03 constitutionality of Section. 1(IV) of law number 8033/90, which established the collection of the IOF (Tax on Financial Transactions) on the transfer of shares and bonuses of public companies. According to the Rapporteur, Justice Edson Fachin, the applicability of the tax on the transfer of shares and bonuses is not inconsistent with the principle of nom-retroactivity of the reserve of the Complementary Act, being supported by Section 153(V) of the Federal Constitution, which also authorizes the Federal jurisdiction to institute taxes on transactions related to titles and real state values. Thus, the following these has been established for purposes of applying the general repercussion: Section 1(IV), of law Number. 8033/1990 is constitutional, since the IOF applies to the legal business of public company securities transfer. Please note that, based on the decision awarded by the Federal Supreme Court, at least seventy-five (75) cases dealing with the same subject and processed by other levels of the Judiciary shall be settled. STF Plenary Session decides that IPI (Tax on Manufactured Products) is payable on car imports by individuals On 2/3/2015, when reviewing the Extraordinary Appeal Number , with known general repercussion, where a taxpayer challenged the decision awarded by TRF4 (Regional Federal Appellate Court for the 4th Region), the Plenary Session of the Federal Supreme Court (STF) has decided, by majority vote, for the applicability of the Tax on Manufactured Products (IPI) to car imports by individuals. According to the opinion adopted by the majority of the Justices (9-2), collecting the IPI is not inconsistent with the principle of non-accrual nor entails double taxation. On the other hand, preserving the applicability of the aforementioned tax is consistent with the principle of equality, since it promotes equal tax conditions between domestic manufacturers already subject to tax in the country and the foreign suppliers. Moreover, after the session has been adjourned, the Justices returned on the next day to decide on the modulation of the decision. After overcoming the discussion regarding the necessary quorum to decide on the modulation, the Full Bench has dismissed, by majority vote (7-4), the modulation proposal submitted by Justice Luis Roberto Barroso. TRF4 - Formal error when completing the DARF (Federal Revenue Payment Form) does not preclude the grant of installment-based tax payment or the issuance of a tax compliance certificate On 2/17/2016, the First Panel of the (Regional Federal Appellate Court for the 4th Region (TRF4), when addressing the Required Appeal number /RS, concluded that a mere mistake regarding the code number on the DARF form does not prevent the installment-based tax payment or the issuance of a tax liability certificate with clearance effects. In the case at hand, the Taxpayer agreed with the installment-based payment under law number /2014 and, instead of indicate the code number. 4750, which refers to revenues from Miscellaneous Payables - Installment-Based Payment, mistakenly insert the Code number. 4743, which is related to Social Security Debt - Installment-Based Payment. According to the Rapporteur, Federal Justice Maria de Fatima Freitas 04 Labarrère, this is merely a formal error, insufficient to preclude the grant of the installment-based tax payment. In addition, the Justice stressed that the purpose of an installment-based payment of taxes is to foster the payment of tax debts and, consequently, lead the taxpaying companies to tax compliance, thus the Federal Revenue Service should correct the formal mistake made. TRF4 - The 50% fine established in Section 74(15 and 17) of law number /96 in case of rejection of applications for PER/DECOMPs (Electronic Application for Reimbursement Compensation or Return and Settlement Declaration) is declared unconstitutional On 02/17/2016, the First Panel of the Federal Regional Court of the Fourth Region (TRF4), judging the Appeal number /PR, decided that the application of the 50% fine in cases of rejection of requests for PER/DCOMPs is unconstitutional. In the case at hand, per the understanding issued by the rapporteur of the case, Federal Justice Maria de Fátima Labarrère, the application of the isolated fine, as established in Section 74(15 and 17) of law number /96, for the sole reason of rejection of the application or non-validation of the clearing statement, conflicts with the provisions of Section 5(XXXIV) of the Federal Constitution, in addition to being inconsistent with the principle of proportionality, and should be rejected.. TJGO - Declaration of Unconstitutionality of State of Goiás laws that address the State fund against poverty (PROTEGE GOIÁS) The Special Court of the Appellate Court of the State of Goiás declared the unconstitutionality of State laws number /2005, /2006 and /2006, which address the creation of the Social Protection Fund of the State of Goiás (PROTEGE GOIÁS), applicable to internal transactions involving the following products and services: (i) communication services; (ii) fuel alcohol; (iii) gasoline; (iv) electricity; and (v) goods listed in the Exhibit to the law (such as tobacco, alcoholic beverages, beverages in general, perfumes and cosmetics, weapons and ammunition). In summary, the Court decided for the unconstitutionality of the Laws, since, as the Justices see it, the creation of a fund requires passing a Complementary Law, not an Ordinary law, in compliance with the provision of the Federal Constitution and Sections 82 and 79 of the Act of Interim Constitutional Provisions, and Sections 146(IIIa), and Section 155(2XIIg), all from the Federal Constitution. Regulations and Consultation Solutions Consultation Solution DISIT/SRRF05 Number Substitute Social Security Contribution based on CNAE (National Business Activity Classification) On 02/05/16, the Consultation Solution number 5001 was published, issued by the Taxation Division of the 5th Tax Region, which addresses the identification of a company s core business for purposes of calculating the Social Security Contribution on the Gross Revenue (Substitution Contribution). 05 Specifically addressing companies for which the replacement of the Social Security Contribution on the Payroll with the Replacement Contribution is linked to its classification under CNAE, the Consultation Solution set forth that the core business of a company, for purposes of selecting such CNAE, is the one from which the highest revenue is earned or expected. Within this context, the Consultation Solution explains that, when a company has earned revenue in the previous calendar year, this revenue should necessarily be considered when defining the CNAE. When, however, the company has not earned revenue in the previous calendar year, the CNAE of the business expected to yield most of the revenue to be earned on the calendar year when the company s business is started (or restarted) should be considered. Consultation Solution COSIT (General Taxation Coordination Office) Number. 02/ Customs Control of Imports - Administrative Tax-Related Fine On 02/05/2016, the Internal Consultation Solution number 02/2016 was published, issued by the General Coordinator s Office for the Tax System (COSIT), which addresses the fine for R$ 5, applicable to cases of failure of international shipping companies, cargo brokers and port trustees or operators to provide information on the business these carry out within the foreign trade context. In response to the Consultation made by the General Coordination Office for Customs Administration (COANA), COSIT by interpreting the text of Section107 of Decree-Law number 37/96 defines that the fine for not providing information should apply to each information item not provided on time and in the form set forth by regulatory provisions issued by the Brazilian Federal Revenue Service (RFB). However, on the other hand, COSIT acknowledges amending or correcting information already provided does not constitute untimely provision of information; thus, the fine under discussion in such cases is not reasonable. Law number / Amendments to the New Code of Civil Procedure On 02/05/2016, law Number. 13,256/16 was enacted, amending certain provisions of the original text of law number /2015, which institutes the New Civil Procedure Code (NCPC). The key amendments include: (i) Amending Section 12 of the New CPC to waive the obligation of trials in chronological order, which now becomes preferential; (ii) Amending Section 537(3) of the New CPC to limit the calculation, by the opposing party, of the amounts paid as a fine to the final decision of the lawsuit; (iii) Addition of Section 966(5 and 6) of the New CPC, to include in scenarios of acknowledgment of case reopening due to breach of an explicit regulation decisions based on the statement of a summary or panel decision awarded when judging repetitive cases that have not considered the existence of a distinction between the issue discussed in the lawsuit and the decision-making pattern that supported it; (iv) Amendments to the complaint option under Section 988 of the New CPC, to include situations of 06 inadmissibility of complaints filed with a view to ensure compliance with the panel decision on an extraordinary appeal with recognized general impact, or even a panel decision awarded under a trial of repetitive extraordinary or special appeals, when the ordinary resources have not been exhausted; (v) Reestablishment of dual judgment of admissibility for special appeals (addressed to the Superior Court of Justice) and extraordinary appeals (addressed to the Supreme Federal Court); (Vi) Amendments to paragraphs and respective subparagraphs of Section of the New CPC, among which the revocation of paragraph 2 stands out, which prohibited the inadmissibility of an appeal based on jurisprudential divergence under the mere allegation of incongruity of the factual circumstances, and; (vii) Addition of subparagraphs to Section 1.030, including circumstance of inadmissibility for Special and Extraordinary Appeals, as well as the possibility of challenging the inadmissibility; (vii) The possibility of interlocutory appeal in case of dismissal of pleas to exclude from the suspension decision and decision and reject extraordinary appeals untimely filed, or even pleas that applies the understanding established on a general impact basis or based on a judgment of repetitive appeals (amendment to Paragraph 7, Section1,035 of the New CPC); (viii) The possibility of filing only interlocutory appeals against decisions to exclude the suspension decision and rejects special appeals or extraordinary appeals that have been untimely filed (amendment to 3 of Section1,036); (ix) The new wording of paragraph 3 of Section1,038 of the New CPC, providing that panel decisions shall cover the review of the relevant grounds of the legal interpretation, removing the need for reviewing all the arguments, as previously provided for in the text; (x) Requirement of escalating the appeal to the higher court when the court that delivered the appealed panel decision has reviewed the original jurisdiction case, the required escalation or the appeal previously judged, with a panel decision that challenges the guidance of a higher court (amendments to 2 of Section1,041 of the New CPC); and (xi) Amendment to the heading of Section1,042, to provide for the possibility of filing an interlocutory appeal against a decision of the Chairperson or Vice-Chairperson of the appealed court that rejects an extraordinary appeal or special appeal, unless when based on the application of an understanding established on a general impact basis or judgment of repetitive appeals. Consultation Solution COSIT Number 3/ Corporate Income Tax/Social Contribution on Net Earnings (IRPJ/CSLL) - Premium On 02/03/2016, the Consultation Solution number 03 was published, issued by the General Coordinator s Office for the Tax System (COSIT), which addresses the method for calculating the premium arising from the purchase of equity interest on the Corporate Income Tax (IRPJ) and Social Contribution on Net Earnings (CSLL) calculation base. 07 At first, COSIT explains that, for purchases of equity interest before 01/01/2015 effective date of law number /2014, the law applicable on 12/31/2007 should be observed, concerning the Transition Tax Regime (RTT), so that the premium resulting from such transactions is determined by the difference between the amount paid (purchase cost) and the amount booked at the date of purchase of the investment (equity of the investee.) According to COSIT, the cost of purchasing equity interest corresponds to the amount actually paid by the buyer to the seller, which must necessarily be adjusted if such amount changes in the future due to any conditions agreed upon by the parties. The equity amount, in turn, is the amount existing at the time of purchase of the equity interest, as provided for in Section 385 of the Income Tax Regulation (RIR/99). Moreover, according to COSIT Solution, the economic basis of the premium should be framed within the scenarios provided for in the applicable law, and should be justified in a statement to be filed with the bookkeeping. Finally, COSIT established the understanding that any losses to the equity of the investee entity should be added to the net earnings of the investor entity for purposes of determining the IRPJ and CSLL calculation base. Dispute Solution number 06/15 - IRRF (Withholding Income Tax) and CIDE (Contribution for Intervention in the Economic Domain) - Payment of Share Capital in a Brazilian Corporation by Non-Residents through Assignment of Rights (Know-How) 02/03/2016, the Dispute Solution number 06 was published by the General Coordinator s Office for the Tax System (COSIT), which addresses the applicability of Withholding Income Tax (IRRF) and Contributions for Intervention in the Economic Field (CIDE) to the payment of the share capital of companies based in Brazil by foreign shareholders, which, in consideration for the equity interest, assigns know-how rights to the Brazilian company. Under the rules of Section 685 of the Income Tax Regulations ( R
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