STF - STJ s decision that removed the IPI assessment of stolen cargo is maintained.

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1 Dear Readers: The Tax Bulletin aims to update our clients and other interested parties on the major issues being discussed and decided within the Judiciary, Legislative and Executive level. In this 86th edition, we address 12 different issues related to Jurisprudence, Regulations and Consultation Solutions. To directly access each text, click : Jurisprudence General Repercussion - STF: - The Federal Supreme Court - STF acknowledged the General Repercussion of controversy about the effects of decisions issued by the STF on abstract constitutional control involving the res judicata established in tributary relations of continued treatment. - The General Repercussion is recognized on debate about the limits of the res judicata in tributary issues involving the concentrated constitutional control. - The General Repercussion of discussion is recognized on any tributary exemption of the Property and Land Tax - IPTU on the real estate held by Caixa Econômica Federal in trust. STF - Company exempts of IPI (Tax on Manufactured Products) is entitled to reimbursement limited to 3 years. STF - STJ s decision that removed the IPI assessment of stolen cargo is maintained. STF - General Repercussion - Constitutionality of the rates difference of the Social Security Contributions by financial entities and equivalent entities. STJ - The RFB cannot oppose to the product classification defined by AVISA. STJ - Company adhering to the tax installment plan is not entitled to reimbursement. TJRS - Judiciary bond can be offered as payment guarantee in the tax enforcement. Regulations and Consultation Solutions RFB Normative Instruction 1,608/ Digital Administratice Proceedings. COSIT Consultation solution number 2/2016- PIS and COFINS credits- Real property, machinery and equipment leasing Law Number 13,259/2016- Capital gain and payment in kind

2 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!

3 Jurisprudence General Repercussion - The Federal Supreme Court (STF) acknowledged the General Repercussion of controversy about the effects of decisions issued by the STF on abstract constitutional control involving the res judicata established in tributary relations of continued treatment. On 04/01/2016, the Virtual Plenary of the Supreme Court (STF) decided by General Repercussion of Appeal (RE) number 955,227 that deals on the limits of res judicata in the tax affairs of continued treatment in view of the abstract constitutionality control by the Supreme Court. In this case, the National Treasury filed the RE aiming at modifying the judgment by TRF3, deciding that the unconstitutionality of the collection of Social Contribution on Net Profits (CSLL) previously stated in final judgment appears as a res judicata and cannot be modified in future action, as decided by the Superior Court of Justice (STJ) in judgment of REsp number 1,118,893/MG under the of Repetitive Appeals procedure. In his statement, Minister Luiz Barroso, points out that this representative of the controversy presents strong economic, social and legal relevance due to the possible breach to articles 5th, XXX- VI, 102 and 103 of the Federal Constitution. In addition, the Minister pointed out that this appeal is not to be confused with the subject in RE number 949,297, by the rapporteur Edson Fachin, ruling on the limits of res judicata in tributary scope regarding the decision issued by the STF in the course of concentrated control. Thus, in accordance with the Rapporteur s vote, the Plenary unanimously recognized the General Repercussion of raised constitutional issue.. General Repercussion -The General Repercussion is recognized on debate about the limits of the res judicata in tributary issues involving the concentrated constitutional control. On 03/04/2016, the Federal Supreme Court (STF), ruled on the existence of general repercussion of the discussion on the limits of res judicata in tributary issues in particular on the trial in concentrated control by the Federal Supreme Court which rules on the constitutionality of tax previously deemed unconstitutional by the final decision in incidental control. Such demand shall be discussed in the Extraordinary Appeal (RE) number /PR reported by Hon. Minister Edson Fachin General Repercussion - The General Repercussion of discussion is recognized on any tributary exemption of the Property and Land Tax - IPTU on the real estate held by Caixa Econômica Federal in trust On 03/18/2016, the Federal Supreme Court (STF) ruled on the existence of general repercussion of controversy on any tax exemption (FC., art. 150, VI, a ), for IPTU in respect of real property held under the trust by Caixa Economica Federal (CEF), but that does not communicate with its assets, according to the law 10,188/01 as it is integrated to House Leasing Program PAR, created and maintained by the Federal Government under such law. Such issue shall be discussed in the Extraordinary Appeal (RE) number /PR reported by Hon. Minister Teori Zavascki. 03

4 STF - Company exempts of IPI (Tax on Manufactured Products) is entitled to reimbursement limited to 3 years On 02/16/2016, the first Chamber of the Superior Court of Justice (STJ), ruling on the Special Appeal number 811,486/RN, determined 3 (three) years term for beneficiary companies with Excise Tax - IPI exemption in the final product to be entitled to the reimbursement. In the case under analysis, the Taxpayer argued that there was a legislative vacuum between the 1988 Constitution and the law providing on the issue, generating the right to retroactivity of law number 99/9,779, which provides on the use of credits related to the IPI. STF - STJ s decision that removed the IPI assessment of stolen cargo is maintained On 03/18/2016, the second Chamber of the Supreme Court (STF) has confirmed the Minister Dias Toffoli s decision that has denied the continuity of extraordinary appeal (RE) number 799,160. In summary the RE filed by Federal Government in viwe of the judgment by the Superior Court of Justice (STJ) removing the collection of Excise Tax (IPI) on stolen cigarettes cargo after the shipment from the commercial facility, had the continuity denied and was taken to the Panel by The Federal Government s Regulatory Appeal in a Bill of Review. The Minister pointed out in his vote the STF s ruling has interpreted the article 46 of the CTN that the word shipment refers to the temporal aspect of the generating event other than the generator event. Therefore, there is no constitutional issue to be analyzed by the Supreme Court. In the respect, the Panel unanimously denied the Regulatory Appeal in a Bill of Review aiming at modifying the Single judge decision denying the continuity to RE. STF - General Repercussion - Constitutionality of the rates difference of the Social Security contributions by financial entities and equivalent entities On 03/30/2016 the Plenary of the Supreme Court-STF unanimously ruled to be constitutional the rates differences on the social security contributions assessed on the payroll of the financial institutions or similar entities. The extraordinary appeal (RE) nº 598,572, with known general repercussion was filed by Banco Dibens S/A in order to obtain the declaration of unconstitutionality of article 22, 1st paragraph of Law 8212/1991, establishing the 2.5% additional contribution on the payroll of the entities mentioned above. In short, the Rapporteur of the case, Minister Edson Fachin, voted for the dismissal of the RE, pointing out there was no new mode of contribution, but simple increase on the rate, under the principles of equality, contribution capacity and the equity for system maintenance. Thus, in accordance with Rapporteur s vote, the Plenary unanimously dismissed the RE, consolidating the following thesis: The legal provision is constitutional on the differentiation of social security contributions rates levied on the payroll of financial institutions or the entities equivalent thereto- after the issue of the Constitutional Amendment 20/

5 STJ - The RFB cannot oppose to the product classification defined by AVISA On 02/16/2016, the first Chamber of the Superior Court of Justice (STJ) decided that the change of product classification is not on tax and customs duties as previously classified by the Health Surveillance Agency -ANVISA. In this case, the controversy was established as the Inland Revenue Office has qualified the Asepxia soap for medicinal use other than cosmetic, according to ANVISA s classification, generating a higher tax burden to the company. In his vote, the Minister Napoleão Nunes Maia pointed out that ANVISA is liable for the definition drugs product and cosmetic. Inland Revenue Office has no functional authority or technical scientific knowledge to perform such analysis. Thus, in accordance with Rapporteur s vote, the Panel unanimously granted the Resp of the company to restore the sentence ruling the product classification in on ANVISA s jurisdiction. STJ - Company adhering to the tax installment plan is not entitled to reimbursement TOn 3/3/2016, the Superior Court of Justice (STJ), ruling on the Special Appeal number 1,260,518/SC, concluded that the companies choosing the credits offset must give up the judicial enforcement, and carrying out the two procedures at the same is not acceptable. In casu, the Ministers of the Supreme Court highlighted that the Taxpayer company offset automatically the credits, incurring in irregular procedure, according to the assessment by Inland Revenue Office, which led to state the understanding that the company had to wait for the exact calculation of the right value to be offset, and it did not. In this respect, according to the Rapporteur s understanding of the case, Minister Herman Benjamin, taxpayer has chosen the judicial enforcement of all credit, thus, any offset is impaired automatically, excepted the prior withdrawal of the enforcement TJRS - Judiciary bond should be offeres as payment guarantee in the tax enforcement On 02/19/2016, the first Civil Chamber of the Court of Justice of Rio Grande do Sul (TJRS), ruling on the Interlocutory Appeal filed brought in case No 70,067,856,088, understood that the judiciary bonds are unquestionable enforceable instruments, thus they should be offered as payment guarantee to the tax enforcement. In casu, the Taxpayer company has pleaded that the offering to the attachment of overdue and unpaid judiciary bonds were considered as payment guarantee of ICMS tax credit collection, alleging the judiciary bond is equivalent to currency and the Constitution ensures the right to the use the overdue judiciary bonds payable by the judgement creditor. In this respect, the Rapporteur of the case, Judge Sergio Luiz Grassi Beck, understood that the credit of judiciary bond is a proper measure to the creditor s right causing less burden to the debtor therefore it should be offered to the attachment. 05

6 Regulations and Consultation Solutions RFB Normative Instruction 1,608/ Digital Administratice Proceedings. On 03/21/2016, Internal Revenue Office of Brazil s Normative Instruction No ( RFB IN No. 1,608/2016 ), entered into force amending the procedures for documents transmission and delivery for the digital proceedings. As of such date, the Internal Revenue Office of Brazil ( RFB ) will not receive the receipts in hardcopy. This is applied also to the proceedings in progress. The delivery of the receipts in all cases, must be carried out in digital media. Legal entities assessed by taxable, presumed or arbitrated profit system should make the receipts only through the Documents Attachment Request Generator Program ( PGS ), a tool integrated to e-cac Porta using digital certificate. In any failure in the documents receipt program preventing the transmission, delivery personally will be authorized of the CD, DVD, or flash drive containing the media to be attached to the proceeding in Call Centers of RFB s Taxpayer ( CAC ). In turn, individuals and legal entities assessed by National Simples should choose to perform their receipts using the PGS or in person at CAC. Finally, it should be noted that RFB IN No. 2016/1,608 withdrew compulsory option by the Electronic Tributary Domicile- ( DTE ) for sending the digital files by the PGS COSIT Consultation solution number 2/2016- PIS and COFINS credits- Real property, machinery and equipment leasing The Consultation Solution no. 2 was published on 03/03/2016, issued by the General Coordination of the Taxation system ( COSIT ), providing on the use of Contribtuion credits - to Social Integration Programs ( PIS ) and Contribution to Social Security Financing ( COFINS ) arising from machinery, equipment and buildings leasing expenses as used for accommodation of legal entities workers, in locations the company has no headquarters or branch offices, and essential to the company s activity. According to the COSIT s understanding, the legislation in force authorizes the credits of expenses of buildings, machinery and equipment lease paid to legal entities and used in the company s activities, regardless of place. However, COSIT understood that, in this case, the real estate lease by the Consultant for the workers accommodation is not used in the activity carried out by the company, as the Consultat s corporate object is the rendering of engineering services, technical consultancy, projects management in engineering, among others related to infrastructure works. Therefore, COSIT concluded that, in this case, the expenses on Buildings lease do not admit the use of PIS and COFINS credits. 06

7 Law Number 13,259/2016- Capital gain and payment in kind The extra edition of the Federal Official Gazette published on 03/17/2016, Law No ( Law No. 13,259/2016 ), the result of the conversion of Provisional Measure no. 692/2015 that has increased among other provisions, the income tax rate in the capital gains earned by individuals. The approved conversion text extended the tax ranges and reduced the tax rates provided for the Provisional Measure no. 692/2015 for capital gains earned by individuals on the property disposals and rights of any kind. According to the new legislation, there will be the following rtaxation ranges: (i) 15% for gains that do not exceed R$ 5,000,000.00; (ii) 17.5% for earnings between R$ 5,000, and R$ 10,000,000.00; (iii) 20% rate for earnings between R$ 10,000, and R$ 30,000,000.00; and (iv) 22.5% rate to gains above R$ 30,000, Law No. 13,259/2016 also provided for the disposal in parts of the same goods or right, up to two years, the capital gain calculated from the second operationmust be added to the gains earned in previous operations, by deducting from the tax amount- paid on these transactions. Moreover, according to this standard, integrating the same goods or right is the stocks or shares set of the same legal entity. Additionally, the law regulated the section XI of article 156 of national TAX CODe ( CTN ), providing on the extinction of the tax credit by the payment in kind in real estate establishing the offered goods should be evaluated in court, according to market criteria, and enconpassing the entire debt to be paid, ensuring, however,the opportunity to the debtor to complement in cash any difference between the debt value and the goods value offered. 07

8 Team responsible for the preparation of that Tax Note: Henrique Philip Schneider Eduardo Pugliese Pincelli Cassio Sztokfisz Diogo de Andrade Figueiredo Flavio Eduardo Carvalho Vitor Martins Flores Rafael Fukuji Watanabe Rodrigo Tosto Lascala Maria Carolina Maldonado Kraljevic Rodrigo Leal Griz Laura Benini Candido Thomas Ampessan Lemos da Silva Ana Cristina de Paulo Assunção Vanessa Carrilo do Nascimento Sergio Grama Lima Pedro Paulo Bresciani Renata Ferraioli Pedro Guilherme Ferreira Bini Roberta Marques de Moraes Tatiana Ergang Barros Stefani Ventura Vargas Henrique Rodrigues e Silva (henrique.silva@souzaschneider.com.br) Igor Fernando Cabral dos Santos (igor.cabral@souzaschneider.com.br) José Filipe Rodrigues Camargo Guimarães (josefilipe.guimaraes@souzaschneider.com.br) Nando Machado Monteiro dos Santos (nando.machado@souzaschneider.com.br) 08