In the Judicial Tax Litigation, we advise our clients at Federal and State levels, always committed to ensure the highest standard of technical quality of work and timely compliance with procedural deadlines.
We fully understand that promptness in meeting client requests, whether in the scope of audits or in the supply of materials and reports related to lawsuits, is paramount, and the firm has a t•¤eam dedicated exclusively to doing so.
Moreover, the fact that we have all the procedural documents and other documents digitized and linked to their respective cases in a modern case management system, expedites decision making, both internally and with clients.
Among the many tax discussions that we argue in court, he following are especially noteworthy:
• We filed the “leading case” brought before the Superior Court of Justice which recognized the application of a zero rate of CPMF in leasing operations, on the ground that such companies were to be likened to financial institutions;
• We obtained the recognition from the Superior Court of Justice of the non-taxation of Withholding Income Tax (IRRF) on the remuneration of services rendered by a resident abroad, based in a country with which Brazil has signed a Treaty to Avoid Double Taxation. The case is known nationwide as the Copesul case.
• We obtained the recognition from the Federal Regional Court of the 3rd Region of the non-taxation of Withholding Income Tax (IRRF) on remittances of income to a financial institution with head office abroad in derivative transactions in the Brazilian over-the-counter market;
• Dispute on the enlargement of the calculation base of PIS and COFINS contributions, since the edition of the widely known constitutional amendments No. 01/1994, 10/1996 and 17/1997, in addition to the amendments to the federal law made through Law No. 9.718/98, later held as unconstitutional by the Federal Supreme Court;
• Still in relation to the enlargement of the calculation base of the PIS and COFINS contributions, our firm became a benchmark in the financial market and among insurance and reinsurance companies for its in-depth knowledge of the sector This translates into materially favorable results for clients (including in matters pending judgment in our higher courts), such as the case of insurance carrier Porto Seguro Cia. de Seguros Gerais, which was relieved of paying COFINS until the end of 2014 through court measures taken by us;
• Recently, following changes made to legislation on contributions to PIS and COFINS under Law No. 12.973/2014, our our firm played a trend-setting role by formulating the thesis that underpins the lack of ground for assessment of these contributions on the financial income earned by insurance and reinsurance companies. This claim has already been recognized in a decision handed down by the Federal Court of São Paulo, as has also been the right to deduction of expenses with bank correspondents and provision for bad debt (PCLD/PDD);
• Still with respect to insurance and reinsurance companies, we have argued that COFINS-Import and PIS-Import cannot be assessed on premiums remitted abroad to cover reinsurance contracts;
• Exclusion of the Tax on Services (ISS) and the tax on operations related to the movement of goods and on services of interstate and intermunicipal transport and communication services (ICMS) from the calculation base of the contributions to PIS and COFINS;
• Annulment of the increase in the rate of contributions to PIS and COFINS in its non-cumulative regime for financial revenues, instituted by Decree No. 8.426/2015;
• Discussion of the effects under tax law of the various economic plans launched by the Federal Government in the 1980s and 1990s, such as Plano Verão, Plano Bresser, Plano Real, among others;
• Discussion on the assessment of Withholding Income Tax (IRRF) on amounts paid to workers with an indemnity nature, removing their characterization as salary amounts;
• Discussion on the assessment of social security contributions due to the INSS on amounts paid to workers other than in the nature of a salary, such as: i) Transportation Voucher; (ii) Sickness Aid; iii) Accident Assistance; iv) 1/3 of Vacation; v) Indemnified Prior Notice; vi) Vacation Allowance (sale of up to 10 days); vii) Day Care Center Aid; viii) Food Aid (non-monetary payment, whether or not the company is registered in the PAT); ix) Single Allowance (provided for in Collective Bargaining Agreement); x) Group Life Insurance (provided that it is extendeded to all employees), xi) Profit Sharing (PLR), among other amounts;
• Discussion on the collection of the Social Contribution on Net Income – CSLL and Social Security Contributions at a higher rate by financial institutions, in violation of the Principle of Isonomy and Contributory Capacity;
• Discussion of the social contribution requirement of Article 1 of Supplementary Law No. 110/2001 (FGTS), since its validity is extinguished with fulfillment of the purpose for which the contribution was instituted, that is, complementation of monetary restatement due to inflationary purges;
• Challenge of the attempt to breach fiscal and banking secrecy of several clients without mandatory prior judicial authorization;
• The filing of judicial measures seeking to preserve the tax-compliant status of clients, in particular the obtaining of debt clearance certificate (Negative Debit Certificate and Positive Certificate with Negative Debt effects);
• Discussion of the increase in social contributions to Work Accident Insurance (SAT)/Environmental Risks of Work (RAT), without due reasoning by the supervisory authorities;
• Exclusion of distribution tariffs (TUSD) and transmission of electric energy (TUST) from the ICMS calculation base;
• Absence of grounds for assessment of ICMS tax on contracted energy demand;
• Absence of grounds for assessment of ISS tax on revenues and fees related to the contracting and execution of financial transactions;
• Absence of grounds for assessment of ISS tax on commissions for the provision of guarantees;
• Absence of grounds for assessment of ISS on the activity of card management and acquisition by the municipalities where the POS terminals are located;
• Absence of grounds for assessment of ISS tax on reimbursement of expenses of financial institutions and apportionment of results between companies of the same economic group;
• Absence of grounds for assessment of ISS on leasing operations outside the headquarters of the leasing company;
• Absence of grounds for assessment of ISS on the investment portfolio management of non-resident investors insofar as such activity may be likened to the export of services;
• Absence of grounds for assessment of the Tax on the Ownership of Motor Vehicles – IPVA on vehicles subject to fiduciary alienation agreement;
• Such discussions take place both in the civil and tax enforcement action contexts, where the firm has wide experience in the matters specified above, as well as in matters such as statute of limitations, disregard of corporate veil, tax liability of partners.
In addition, we carry out permanent monitoring of federal legislation on tax relief programs implemented by the Federal Government, such as REFIS, PAES, PAEX, PRORELIT, PRT and PERT, among others, in order to identify possible opportunities of fiscal savings for clients.