case laws legislation and response to...

Dear Sirs:

The Tax Bulletin aims to update our clients, as well as those interested in important tax issues that are being discussed at Courts, Legislative and Executive.

In the 64nd edition, we bring 15 different subjects, within Case Laws, Legislation and Responses to Inquiries.

Click over the topics below to directly access each text:

Case Laws

STJ – Guarantee insurance – Impossibility of using it as collateral in tax enforcement claims

STJ – Review request after the debt is recorded as collectible – Impossibility of reopening administrative litigation or suspending the tax credit

TRF3 – Information provided with errors – Possibility of alteration – Impossibility of imposing a fine, pro-vided that there is no fraud or harm to the Tax Authorities

Legislation and Response to Inquiries

Rule (Portaria) no. 1,844/13 – Exemption of Attestation of Signature in Powers of Attorney Submitted to the RFB

Rule no. 1,880/13 – Exemption of Attestation of Signature in Documents Submitted to the RFB

Decree no. 8,165/13 – IOF – Assignment of Stocks Traded in the Stock Market

Normative Rules of the RFB no. 1,420 and no. 1.422 - Digital Accounting Bookkeeping and Fiscal Book-keeping

Normative Rule RFB no. 1,436 – Social Security Contribution on Gross Revenue– changes to levy and ascertainment rules

Normative Opinions no. 24, 26 e 29 - IPI

Response to Inquiry no. 70/13 COSIT - IRPF - Debt Relief

Response to Inquiry no. 9 COSIT - IRRF – Investment Funds - Service Rendering

CAT Normative Decision 02/2013. ICMS

64Tax report n° 64 • Year VI • December of 2013 and January of 2014


Decree no. 59.952. Port Competition. ICMS

State Law no. 15,315/2014. ICMS


Souza, Schneider, Pugliese e Sztokfisz Advogados law firm is available to its clients should they have any questions on the above matters.

Enjoy your reading!


Case Laws

STJ – Guarantee insurance – Impossibility of using it as collateral in tax enforcement claims

The First Panel of the Superior Court of Justice (STJ), in the trial of the Internal Interlocutory Appeal (AgRg) in Special Appeal (Responsibility) 1.394.408-SP, unanimously granted the Special Appeal of the State of São Paulo, in order to reject the use of the guarantee insurance (performance bond) as collateral in tax enforcement claims.

The position of the First Section of the STJ was reiterated so as to rule out the guarantee insurance for col-lateral in tax enforcement claims, due to the lack of a legal rule regulating it, since this type of guarantee is not provided for among the enforcement guarantee events contained in article 9 of Law no. 6,830/80. This is yet another precedent that sets the application of a special rule (Law no. 6,830/80) to the detriment of the general rule (Code of Civil Procedure).

It is of note that, although Law no. 6,830/80 does not contain a provision for including the guarantee insur-ance, Rule (Portaria) no. 1,153, of 2009, was enacted by the Attorney General Office of the National Treas-ury, which authorizes the use of the guarantee insurance to secure debts recorded as collectible. Some States have similar rules, as in the case of Minas Gerais and Pernambuco. Therefore, for debts with the National Treasury and with such States having specific provision as to non-statutory rules, we believe it is possible to use the guarantee insurance as a bond.

However, in the examined precedent, the debt intended to be secured was of the State of São Paulo, where there is no rule authorizing the use of the guarantee insurance, preventing its acceptance pursuant to the terms mentioned above.

STJ – Review request after the debt is recorded as collectible – Impossibility of reopening administrative litigation or suspending the tax credit

The Second Panel of the Superior Court of Justice, in the trial of Resp 1.389.892-SP, unanimously con-sidered that the administrative request of review made by the taxpayer after the debt was recorded as collectible is not able to suspend the enforcement of the tax credit or to reopen the administrative litigation.

In its Special Appeal, the National Treasury affirmed that the request to review the debt recorded as col-lectible does not suspend the enforcement of the tax credit and therefore does not allow the suspension to record the debtor’s name in the Registry of Non-Settled Federal Debts (CADIN). Thus, the decision that determined the cessation of the claim and suspension of the effects of recording the debt as collectible would violate article 151 of the National Tax Code (CTN).

The Rapporteur, Justice Herman Benjamin, pointed out that pursuant to article 151, item III, of the CTN, the statement of discontentment, with suspensive effects, should be expressly governed in specific laws and be handled before the debt has been recorded as collectible, since this presupposes exhaustion of procedures at the administrative level.

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At any rate, the Rapporteur affirmed that the Tax Administration cannot refuse the filing of any review re-quest, and that it is their duty to provide a solution to said request. However, the administrative litigation should not be reopened, since the statement of discontentment made after the debt was recorded as col-lectible represents a mere exercise of the right to seek public bodies, lacking suspensive effectiveness, unless there is an express legal provision stating so.

TRF3 – Information provided with errors – Possibility of alteration – Impossibility of imposing a fine, pro-vided that there is no fraud or harm to the Tax Authorities

The Third Panel of the Federal Regional Court of the 3rd Region (TRF3), in the trial of Civil Appeal 0013732-03.2007.4.03.6105 (SP), unanimously found that the information provided with errors by the taxpayer in import registrations may be altered, remedying them or including other information that is necessary for correcting the procedure, the application of the fine being excessive, due to the taxpayer’s right to this cor-rection, as long as there is no equity damage to the Tax Authorities or fraud in import documents.

This is a case in which the taxpayer, having already performed the import regularly by providing the required documentation, stated a different Common Mercosur Nomenclature (NCM) classification in the Import Li-cense from the one the Federal Revenue believed was the correct one.

The Rapporteur, Federal Judge Eliana Marcelo (appointed), verified that the Tax Authorities issued an as-sessment notice under the claim that the data related to the import performed by the taxpayer do not con-form to the correct product description, which resulted in the declassification of the product by the Customs Inspection.

Nevertheless, both classifications were subject to the same tax rate of 3.50% for the Import Duty and 0% for the Tax on Manufactured Products, meaning there was no change to the tax burden or any acts that could subtract the taxation by the Tax Authorities, which authorizes the position that there was a mere error in the classification. Therefore, it was found that the taxpayer’s error, within the factual context of the case, allowed it to be remedied administratively through a Complementary Statement, as provided for in DECEX Rule (Portaria) no. 8/91, in article 421 of the Customs Regulation, and in article 492 of Decree no. 4,543/02, thus cancelling the Assessment Notice issued.

It should be pointed out that although the mentioned precedent rules out the fine considering that the identical tax rate for both classifications indicate lack of losses to the Public Treasury or of acts that tend to subtract taxation, this is not the only event in which the fine arising from NCM classification errors may be challenged. The fact is that in certain cases, it is possible for there to be justifiable divergence in the clas-sification, even when there is a favorable tax rate difference, provided that certain requirements are present, such as strong technical, scientific and/or documentation grounds of the classification, and indications of good faith, for instance.

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Legislation and Response to Inquiries

Rule (Portaria) no. 1,844/13 – Exemption of Attestation of Signature in Powers of Attorney Submitted to the RFB

RFB Rule no. 1,844/13 was published on Dec. 20, 2013, which exempted the requirement to attest signa-tures in powers of attorney submitted to the RFB, except in case of justified doubt as to the authenticity of the signature contained in the submitted document or in case of a legal imposition.In case it is verified that the signature contained in a public or private document had been forged, the RFB will reject the document and inform the relevant authority of the fact, so that a criminal procedure may be instituted within five days.

Rule no. 1,880/13 – Exemption of Attestation of Signature in Documents Submitted to the RFB

RFB Rule no. 1,880 was published on Dec. 26, 2013, whereby the requirement to attest signatures in docu-ments submitted to the was exempted, except in case of justified doubt as to the authenticity of the signa-ture contained in the submitted document or in case of a legal imposition.

In case it is verified that the signature contained in a public or private document had been forged, the RFB will reject the document and inform the relevant authority of the fact, so that a criminal procedure may be instituted within five days.

Decree no. 8,165/13 – IOF – Assignment of Stocks Traded in the Stock Market

Decree no. 8,165 was published on Dec. 24, 2013, reducing to zero the tax rate of the IOF/Exchange charged on the assignment of stocks traded in the Stock Market with the specific purpose of securing the issue of depositary receipts (“DR”) traded abroad.

Normative Rules of the RFB no. 1,420 and no. 1.422 - Digital Accounting Bookkeeping and Fiscal Book-keeping

Normative Rules of the Federal Revenue of Brazil (IN) no. 1,420 and no. 1,422 were published on Dec. 20, 2013, in order to create the Digital Accounting Bookkeeping (“ECD”) and the Fiscal Bookkeeping (“ECF”), respectively, and to determine the way they are transmitted, their content, safety procedure, and the right holders subject thereto.

According to IN no. 1,420, the following are required to adopt the ECD: (i) legal entities opting for the taxable income method; (ii) legal entities opting for the presumptive income they distribute, as profits, without the charge of the Withholding Income Tax (“WHT”), portion of the profits or dividends superior to the tax basis value, less all taxes and contributions to which it is subject; (iii) and the legal entities having tax immunity and exemption. Taxpayers that do not fit into these events are not required to adopt the ECD.

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According to IN no. 1.422, all legal entities, even those classified as equivalent, are to submit the ECF, except for: (i) legal entities opting for the Federal Simplified Tax System for Small Businesses (Simples Nacional), dealt with in Law no. 123/2003; (ii) public bodies, autonomous government agencies, and public foundations; and (iii) the inactive legal entities dealt with in IN no. 1,306/2012.

Such normative acts have been in force since the date of their publication.

Normative Rule RFB no. 1,436 – Social Security Contribution on Gross Revenue– changes to levy and ascertainment rules

Normative Rule of the Federal Revenue of Brazil (“IN”) no. 1,436 was published on Jan. 2, 2014, in order to provide for the Social Security Contribution on Gross Revenue (“CPRB”) intended to the Social Security General System (“RGPS”), coming into force on the date of its publication.

The IN established that the CPRB, with regard to the recognition of the time of revenues and to the payment deferral of such may be computed according to the same criteria used for the ascertainment of the Con-tribution to the PIS and to the COFINS. The Normative Rule also defines Gross Revenue, some revenue events that are to be excluded from the tax basis, and the ascertainment and payment procedures.

Normative Opinions no. 24, 26 e 29 - IPI

At the end of 2013, Normative Opinions no. 24, 26, and 29, which deal with levy aspects of the Tax on Manufactured Products (“IPI”), were approved, addressing the following topics:

Normative Opinion no. 24: There is no taxable event of the IPI at the exit of a product from the industrial establishment manufactured and resold by a third party. The tax will be levied on the exits made by the ac-quirer when the latter is considered equivalent to an industrial establishment.

Normative Opinion no. 26: The Import Duty excluded by the exemption or reduction does not integrate the IPI tax basis, nor do the non-exchange charges effectively paid by or not required from the importer.

Normative Opinion no. 29: The consumption of taxed products originating from abroad taxed, within the im-porter’s establishment, is not a taxable event of the IPI. In this case, it is mandatory to reverse any tax credit paid at the customs clearance that may have been recorded in the fiscal bookkeeping.

Response to Inquiry no. 70/13 COSIT - IRPF - Debt Relief

Response to Inquiry no. 70/13, issued by the General Coordination of the Tax System (“COSIT”), was pub-lished on Jan. 9, 2014, whereby COSIT states the position that the debt relief will only have tax effects for the beneficiary if the relieved debt corresponds to the consideration for services rendered to the creditor.

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Response to Inquiry no. 9 COSIT - IRRF – Investment Funds - Service Rendering

Response to Inquiry no. 9, of the General Coordination of the Tax System (“COSIT”) was published on Jan 14, 2014, addressing the charge of the Withholding Income Tax (“WHT”) at the time of payment of profes-sional services - article 647 of the Income Tax Regulation 1999 (“RIR/99”).

According to COSIT, as the investment funds do not have a legal entity nature, but are characterized by a pool of funds under the form of a co-ownership, they are not required to withhold the WHT at the time of payment of professional services. In fact, only legal entities would be subject to article 647 of the RIR/99.


CAT Normative Decision no. 02/2013 was issued on December 2013, whereby the Treasury Office of the State of São Paulo formalized its position that the deferral of ICMS in transactions with animal fat is not interrupted with the mere entry of the goods into an industrial establishment; such goods having to later un-dergo a transformation process. Thus, CAT Normative Decision no. 1, of Feb. 10, 2010 was then repealed.


CAT Normative Decision no. 03/2013 was issued in December 2013, whereby the Treasury Office of the State of São Paulo altered its position, in order to consider that the reduction of the tax basis provided for in ICMS Agreement (Convênio) 52/91 and the 12% tax rate to which SF Resolution 4/98 refers apply to all transactions with industrial machinery, devices, and equipment and to agricultural machinery and implements whose NBM/NCM are provided for in such normative decisions, irrespective of whether their destination is exclusively for industrial or agricultural purposes. Therefore, CAT Normative Decisions nos. 6/2010, CAT 8/2010, and CAT 1/2011, as well as all tax inquiries on the same matter that have concluded otherwise, have been repealed.

Decree no. 59.952. Port Competition. ICMS

Decree no. 59,952 was enacted in December 2013, through which the State of São Paulo extended the term until May 31, 2014, to submit requests seeking the State of São Paulo to recognize the ICMS pay-ments made by São Paulo State companies to the State of Espírito Santo, in violation with ICMS Filing no. 23/09, in import transactions of goods or merchandize from abroad on behalf and order of a third party.

Thus, a new term was granted in order for São Paulo taxpayers that acquired goods in import transactions on behalf and order of a third party, in which the importer was located in the State of Espírito Santo, to regularize their situation.

State Law no. 15,315/2014. ICMS

State Law no. 15,315/2014 was published in January 2014, providing for the cancellation of the

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effectiveness of the enrollment with the ICMS taxpayers’ registry. Its article 1 imposes a sanction involv-ing the cancellation of the effectiveness of the enrollment with ICMS taxpayers’ registry to “establishments acquiring, distributing, transporting, storing, reselling, or putting up for sale any consumption goods, food products, or any other manufactured products arising from smuggling or theft, regardless of whether or not the reception of stolen goods has been characterized”.

From its literal interpretation, the provision allows for the criminalization also of taxpayers of good faith that have acquired products regularly, in cases in which the reception of stolen goods is not present.

Therefore, depending on the circumstances of each case, it is entirely feasible to challenge the imposition of such a penalty on taxpayers of good faith, based on the rationale of countless case law precedents on the matter, namely the STJ’s paradigm that recognizes the right to the non-cumulative ICMS credits to taxpay-ers of good faith, even if their suppliers are declared to be un suitable by the Tax Authorities.

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Team responsible for preparing the Tax Bulletin:

Igor Nascimento de Souza ([email protected])

Henrique Philip Schneider ([email protected])

Eduardo Pugliese Pincelli ([email protected])

Cassio Sztokfisz ([email protected])

Fernanda Donnabella Camano de Souza ([email protected])

Diogo de Andrade Figueiredo ([email protected])

Flávio Eduardo Carvalho ([email protected])

Rafael Monteiro Barreto ([email protected])

Sidney Kawamura Longo ([email protected])

Rafael Fukuji Watanabe ([email protected])

Rodrigo Tosto Lascala ([email protected])

Maria Carolina Maldonado Mendonça Kraljevic ([email protected])

Viviane Faulhaber Dutra ([email protected])

Tiago Camargo Thomé Maya Monteiro ([email protected])

Flavia Gehlen Frosi ([email protected])

Marina Lee ([email protected])

Thomas Ampessan Lemos da Silva ([email protected])

Gabriela Barroso Gonzaga Ferreira Porto ([email protected])

Guilherme Almeida de Oliveira ([email protected])

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