STF companies hope to position themselves in war tax

The Supreme Court (STF) has shown that it will not allow the granting of incentives and benefits Tax on Goods and Services (ICMS) for states without unanimous approval in the National Policy (Confaz). With so many companies are now turning their eyes to the ruling of the Court to understand how they should act and will have to pay interest and penalty for taxes not collected.

Last week, the Supreme Court held 14 shares directly held invalid and unconstitutional laws and decrees in six states and the Federal District. "The Supreme Court took a firm position, but there is a legal uncertainty. Companies are now waiting to see how will the decision in writing and will apply to all cases of past and future," says Bianca Xavier, a professor of tax law Law FGV Rio

She explains that the recent decision of the Superior Court of Justice (STJ) said in a similar case, that the tax is due, but without the fine. According to the teacher, discussion on higher interest payments, since the taxpayer relied in good faith in an act of the state and the law declaring the legality of incentives. "If the Supreme clear that interest should be charged, it is impossible to reopen the discussion. But if not, each case should be discussed," says Bianca.

An understanding to this effect should generate a flood of legal suits. "Insecurity is great today. Many businesses would close because they have no value because supposedly," says Bianca. For her, the Treasury may levy the tax in five years.

The teacher said that considering the possibility that states make agreements retroactive, allowing what has been done and thus ensuring the constitutionality of its laws and decrees. "All states have a glass roof, but this is still only a possibility," he says.

One thing is certain: the output may not be the issue, states, the new standard regularizing the situation of companies have incentives suspended if at the same time, new benefits are created as a subdivision of debt moratorium and exemption from interest and penalty . The Rio de Janeiro had set his hand this measure exactly, due to the determination of the Supreme in 2002. Last week, however, the Court said the state and dribbled his decision overturned the state law. "The law is flawed and has shown contempt for the Court's view," said Minister Marco Aurelio.

The lawyer Alexandre Nishioka, the Wald Associados Advogados, says the Supreme expressed need to leave, perhaps in the trial of other actions, as will be the situation of taxpayers who used incentive subsequently declared unconstitutional. "There is a conflict with the presumption of constitutionality of laws. We can not want to charge the responsibility for the breach of the Constitution by the states. Courts must say if the law is unconstitutional from the trial," he says.

Pending

A survey conducted among the direct actions of unconstitutionality proposals from 2000 to 2011 shows that there are still at least 26 stocks on the subject awaiting trial. More than 40 lawsuits have already been tried, but not on merit: there was loss of object, because the law establishing the benefit had already been extinguished.

The assessment, done by Professor of Law FGV Rio, shows 15 cases involving the states of Espirito Santo Brazil is the champion of standards questioned (five), followed by Rio de Janeiro (four), Paraná (three), Santa Catarina and Mato Grosso (two each). Ceara, Goias, Amazonas, Tocantins, Piauí, Bahia, Sergipe, São Paulo, and Mato Grosso do Sul have an action against them each.

Among the cases under review in the Court are laws with state benefits for disabled cars, airlines, bus companies and trucks, clothing, transportation of personnel, information technology, automation, aluminum, agribusiness, industry and sports equipment, and the compensation claims , more time to pay a fine and forgiveness.

She discovered that in those states following the war tax, at least until manifestation certainly contrary, the Supreme. And the survey is not necessary, since there are problems with registration of the Supreme Court itself. "There must be at least twice as many actions against the benefits of GST," says Bianca.

For her, the war does not end just with the declaration of unconstitutionality of laws and decrees by the Supreme Court, because many states have not even been challenged in court - like the recent practice of paying "debts of GST taxpayers, considered a way to circumvent the seal, says Bianca.

The expert, who says the end of fiscal benefits takes companies even to other countries, says that after the decisions of the Supreme is possible for states to challenge the benefits of others, something that depends on a political stage. "The Supreme Court gave encouragement that was missing and may have further actions," he adds. 

Source: DCI