21st january 2005
The municipal law of Rio de Jarneiro regarding the tax of goods and services (ICMS) has been suspended.
Law No. 4.482/04 approved by the government of Rio de Janeiro, has been suspended.
It contains regulations related to compensation of ICMS taxes in cases of export trade within the state.
The preliminary judgement hast been aproved by supreme court judge, minister Nelson Jobim. This happened as a reaction to the complaint of unconstitutionality by the national industry association, according to which, the law has been declared illegitimate.
In accordance with Jobim it has to be figured out which parts of the law must be replaced by substitutional law (LC – lei complementar).
For such cases the LC 87/96 has been created, which determinates the dues for bookkeeping.
„The rejected law penetrates a sphere, that was intended for the LC 87/96, though it contains rules regarding the compensation for damage. This is a direct violation of the contitution“ says Jobim.
The minister clarifies that this particular field of law must not be part of municipal law and that such cases will allways be considered as a violation of the constitution.
Payback of exceeding ICMS taxes as credit.
President of the supreme court, minister Edson Vidgal, has stayed the final judgement, which obligated the state of bahia to allow the payback of ICMS taxes in the form of credits.
Beverage suppliers have payed exceeding ICMS taxes. The judgement of the first instance was confirmed by the district court of bahia. Supplier Paulo Afonso Comércio e Representações Ltda. achieved the cancellation of taxes, which were payed on calculation basis that exceeded the real value of the venture.
In the current process the supplier demands not to cancel those taxes, but to convert the debt into a certified credit that can be sold to third parties - in the amount of R$ 6,2 million. This has been granted by the court of first instance. However the state of Bahia has already filed a lawsuit at the supreme court according to which the jugdement shall be cancelled. Even though the original claim has already been transfered it is now subject of the nullification suit.
The state of Bahia claims the payback of ICMS taxes is not possible. Such arrangement of payback would only be possible in cases of non-tax-debts. In accordation with minister Edson Vidigal the premises of the case are beeing checked, which are violation of state security, health and economy.
Those creteria which are normally not relevant for such cases, play an important role in the current one. The appeal targets the fact that the suppliers had been able to transfer their ICMS tax-credits to third parties. This is supposed to be a violation of state economy, because it may prevent the payback of the credits in case the tax regulations are beeing modified.
According to the minister the first instant judgement prevents the collection of tax debts by the state. The president considers it would be wiser to wait for the final judgement before allowing any further payment.
Process: SS 1453; Source: Superior Tribunal de Justiça
The general government has to ensure the effective work of the legal system.
The localization of criminals and their goods is a public interest. Nevertheless the intervention of the legal system has to be the last option, which is only to be applied when the accused can not be found on any other way. In this matter Marilene Bonzanini, judge at the ninth civil court in Rio Grande do Sul, has acceded to an appeal. According to the court report public institutions are not allowed to reveal constant information out of the ciminal records concerning the privacy of people.
Only in case every other posibility in order to localize the accused is expoited, the judge allows the intervention of the courts. Based on article 557, § 1º-A, of the CPC the judge acceded to the appeal, and assigned in such cases the reveal of usefull information on the accused, to the national trade comission. Furthermore a proof of every other possibility of localizing the accused beeing exploited is not required. According to Bonzanini this would lead to an unnecessary slowdown of the courts action. The highest priority of the justice system has to be an effective and excellent legal performance.
Process: 70010360139; Source: Tribunal de Justiça do Rio Grande do Sul.