NOTÍCIAS
Litigation
Superior Court of Justice ruled that the partial dissolution of a company arising as result of the partner’s death does not take away the jurisdiction of the Arbitral Tribunal
The Superior Court of Justice, in the recent trial of the Special Appeal 1.727.979 / MG, maintained the jurisdiction of the Arbitral Tribunal over a claim of partial dissolution of the company and liquidation process filed by the estate of the deceased partner against the company and the remaining partner.
According to estate of the deceased partner, the jurisdiction over the claim of partial dissolution of the company would be of the State Courts and not of the Arbitral Tribunal, as such claim involves succession law and the heirs of the deceased partner did not expressly consent with the arbitration agreement of the Articles of Association.
According to the Court, “the subject discussed within the context of the claim for (partial) dissolution of the company is strictly and eminently a corporate matter”, as such claim is related to the interests of the remaining partners, heirs of the deceased partner and, mostly, of the company itself.
The Court also emphasized that the arbitration agreement set forth in the articles of association executed by the time of the company’s incorporation bounds the company and all partners, current or future partners, to the extent that all partners are bound to the rules of the company in a unitary and common way, which will prevail over any individual and dissenting position.
Administrative and Public Law
Superior Court of Justice decides that companies under judicial reorganization may participate in public bids provided that its economic viability is proven
According to the Public Procurement Law, to be qualified in a bidding process, a company shall demonstrate its economic-financial qualification, which is limited to the balance sheet, certificate of inexistence of bankruptcy or debt rehabilitation (concordata proceedings – equivalent to chapter 11 proceedings) and bid bond. Given the replacement of the concordat proceedings by the judicial reorganization, the public authorities started requiring the certificate of inexistence of judicial reorganization, although there is no legal provision allowing it.
In this sense, the First Chamber of the Superior Court of Justice, in a specific case, decided that a company under judicial reorganization may participate in a bidding process, provided that its economic viability is proven during the qualification phase of the bid.
The argument of the Reporting Justice was that the Federal Bidding Law does not authorize the automatic prohibition of companies under judicial reorganization from participating in bids. He explained that although the Bidding Law demands the negative certificate of bankruptcy or concordat as proof of the economical-financial qualification, and, even though the judicial or extrajudicial reorganization modalities have replaced the concordat, such Law was not updated to be adjusted to the current situation. The Judge correctly pointed out that the public authorities are not allowed to impose additional requirements based on extensive interpretations not provided by the laws.
A fair solution was established for that case – since the company presented a certificate issued by the lower court responsible for the judicial reorganization attesting its economic-financial health. Hence, on one hand, the public administration received the evidence of the good economic situation of the company; and, on the other hand, the company had recognized its right to participate in a public bid proceeding without submitting a certificate of inexistence of judicial reorganization, which is not specifically required by the Public Procurement Law.
It is an important precedent. After all, as properly considered in ruling, the purpose of the Judicial and Extrajudicial Reorganization is “to enable the overcome of the situation of economic and financial crisis of the debtor [company], allowing the maintenance of the producing source, the employment of workers and the interests of creditors, thus promoting the preservation of the company, its social function and the stimulus to economic activity”.
Supreme Court defines that claims for reimbursement to the public treasury (disgorgement) based on willful acts of administrative dishonesty are not subject to statute of limitations
It was a trial of a complex general repercussion (which conclusion must be applicable to all pending cases with the same discussion), since the question sub judice was based fundamentally on the protection both of the public treasury and of the principle of legal certainty. After 2 Judges reconsidered their votes, by 6 votes to 5 the Supreme Court defined the following thesis: “Are no subject to the statute of limitations the claims for reimbursement to the public treasury based on the practice of willful act typified in the Law of Administrative Improbability”.
The discussion revolved around the following controversy: claims for reimbursement to the public treasury based on acts of administrative dishonesty
(i) are imprescriptible, in view of the final wording of article 37, § 5 of the Federal Constitution, namely, “The law shall establish the limitations for illicit acts, performed by any agent, whether or not a Government employee, which cause losses to the Public Treasury, without prejudice to the respective claims for reimbursement “; or
(ii) are subject to the statute of limitations provided in the Administrative Improbity Law (Federal Law no. 8,429/92).
Initially, 6 ministers defended that the system of laws has as a rule the existence of a statute of limitation. Additionally, when the Constitution inversally decided, it did so explicitly (i.e., crimes of racism and the actions of armed groups, civil or military, against the constitutional order and the democratic state). In this sense, at first they decided that there was no provision of lack of statute of limitations in the Constitution in relation to the reimbursement of the public treasury (disgorgement) due to condemnation for the practice of an act of administrative dishonesty, being applicable the statute of limitation provided for in Administrative Improbity Law.
On this occasion, the rapporteur’s vote stated that the inexistence of statute of limitation impairs the full exercise of the right of defense, “because it is not common from the average man to keep, beyond a reasonable time, and today, even by law this is not required, the need documentation for an eventual defense” (Judge Cármen Lúcia’s vote in case RE 669.069/MG).The trial was resumed a week later, under strong criticism from the Public Prosecutors Offices and from great part of the legal community, in the sense that the court’s decision would undermine the fight against corruption. At the resumption of the trial, the Judges Luiz Fux and Roberto Barroso reconsidered their votes and decided for the inexistence of statute of limitations for the claims of reimbursement to the public treasury based on willful acts of administrative dishonesty.
Therefore, the final trial had the score of 6 to 5 for the thesis initially transcribed, as a result of the disclaimer established in paragraph 5 of Article 37 of the Federal Constitution, and the need to protect the public treasury.
Lifesciences
Minas Gerais state publishes new Resolutions on the obligation to report of interactions with healthcare professionals and the sponsorship of scientific events
Long anticipated by regulated sector, Minas Gerais state published two Resolutions that regulates (i) State Decree No. 47,334/2017 and (ii) State Law No. 22,921/2018.
Resolution SES-MG No. 6,368/2018 regulates Decree No. 47,334/2017, providing that the healthcare sector industries must declare relationships with healthcare professionals of any nature that constitutes potential conflicts of interest.
The resolution defines, extensively, which industries and activities are included in the declaration obligation, as well as brings the concept of conflict of interest and of situations that might be deemed as.
Beyond that, Resolution SES-MG No. 6,368/2018 defines clearly a controversial point in the interpretation of the Decree, the criteria for the donations or benefits have to be declared, which are (i) if are given by industries enrolled before CNPJ in Minas Gerais State and (ii) if benefits healthcare professionals enrolled before a Class Council of Minas Gerais State.
The second norm, Resolution SES-MG No. 6,369/2018, regulates State Law No. 22.921/2018, which provides on the obligation of healthcare companies and healthcare products companies to inform the state competent organ about the sponsorship to hold a scientific event.
In the same way as the previous one, Resolution SES-MG No. 6,369/2018 defines which companies are covered by the mentioned Law, as well as then the sponsorships must be declared: (i) when the sponsor company is enrolled before CNPJ in Minas Gerais State or (ii) when the scientific event is held at Minas Gerais State.
In any case, Resolution SES-MG No. 6,368/2018 is still not enforceable, given the absence of a specific system to upload required information, which is being under development by a technical group created by the Health Secretariat of Minas Gerais State for this purpose.
The Drugs Market Regulation Chamber (CMED) published a resolution regulating the sanctioning administrative procedure in the drugs market
In August 23, 2018 was published CMED’s Resolution No. 02/2018, which establishes rules for preliminary investigations and administrative procedures for the verification of infractions to the drugs market regulation and the application of the correspondent sanctions. The Resolution has the purpose to unify the norms and orientations from CMED in a single legal instrument, making the law more comprehensive.
Besides defining the minimum requirements and procedures for complaints and preliminary investigations, as well as the obligation of elaboration of a Technical Note by CMED’s Executive- Secretariat for each procedure opened, the Resolution classifies the infractions to the drugs market regulation in two types: (i) non-measurable infractions and (ii) measurable infractions, establishing the correspondent sanctions for both situations.
In addition, the norm provides for: (a) criteria for the remediation of the violation practices, (b) objective parameters for the calculation of the fines, (c) definition of mitigating and aggravating circumstances, and (d) causes of fines’s increase.
Also, stands out the provisions of (i) voluntary and effective reparation performed before the receiving of notification of administrative procedure opening and (ii) posterior reparation, that will occasion the reduction of fine penalty by its half.
Last, but not least, the Resolution also regulates the application of the legal mechanism of the Conduct Adjustment Declaration (“Termo de Ajustamento de Conduta”), which represents a regulatory breakthrough and a beneficiary and modern measure, in the sense of the application of the principle of consensuality in the Administrative Law.
Ministry of Health opens Public Survey about biologic drugs
Aiming to support the formulation of the Nacional Policy on Biological Drugs, in the Unified Health System (SUS), the Ministry of Health started a Public Survey to gather information and perceptions on the matter. The purpose of Public Survey on Biological Drugs is to hear the public (civil society, public entities, education institutions, class entities, etc) to identify the main difficulties and problems found in the research, development, production, regulation, provision, monitoring and rational use of biological drugs.
The Survey will receive contributions until September 9, 2018 and is available in this link.
Environmental licensing in the state of Minas Gerais: possibility of signing Conduct Adjustment Term to allow the continuity of the installation phase
The New Decree No. 47.474/2018 was published in August 23, 2018, establishing very specific new rules for environmental licensing, typifies and classifies infractions against environmental and water resources protection norms, as well as provides the inspection and penalties procedures in the State of Minas Gerais.
The main changes summarized below involves the installation phase of facilities or activity:
(i) conditionate the continuity of the installation of facilities or activity concomitant to the corrective licensing procedure to the signing of a Conduct Adjustment Term (“TAC”) with the competent environment entity to allow;
(ii) inclusion of a 120 days minimal advance of the expiration date of the license, as the limit term to request the renewal of the Installation License. If the deadline is complied, the license will be considered automatically renewed until definitive analysis of the competent environment entity;
(iii) imposition of validity term reduction in case of installation license (“LI”) renewal to each grave administrative infraction, being 2 years the minimal validity period; and
(iv) Installation License may be renewed only once.
The new Decree creates the following changes in the current environmental licensing rules:
(i) extends the power of inspection of the State Military Police on: (a) wild fauna affairs; (b) fishing and forest affairs; (c) issues deriving from activities or facilities without installation/operation license or authorization; (d) issues deriving from the construction/drilling of wells or water resource intervention in non-compliance with the granted authorization or insignificant water resource use register;
(ii) included a new infraction, associated to “not registering or updating data in State Technical Register of Potentially Polluting Activities or Natural Resources User”;
(iii) extends the use of the Conduct Adjustment Agreement to cease seizure penalty (“embargo”) of the facilities construction or activity.
Tax Law
Company ensures the right to maintain the tax benefit of 2% of the Reintegra until the end of 2018
Federal Judge Johonsom Di Salvo (Federal Regional Court of the 3rd Region) recently accepted a Bill of Review filed by Toyota do Brasil Ltda. ensuring the continued application to that company of the preferential 2% tax rate to calculate the benefit of the Special Reintegration Regime for Reintegra by the end of 2018.
In May of this year, through Executive Decree 9,393/18, the Government reduced the Reintegra benefit rate from 2% to 0.1%, effective from June 1st. Toyota sought relief before the Judiciary in order to benefit from the 2% rate at least until the end of 2018, since the reduction of the benefit implies an indirect increase in the tax burden, contravening the principle of annual anteriority. A Federal Judge accepted the arguments of the company and granted the request for the interlocutory injunction.
Other taxpayers have been pleading the same before the Judiciary, but so far there are few rulings on the matter.
São Paulo Court Of Justice determines that writs of payment (precatórios) may be accepted as collateral in tax executions
In a ruling recently rendered in a Bill of Review, the São Paulo Court of Justice allowed the offer of a State writ of payment (precatório) as collateral in a tax execution. According to the ruling, writs of payments constitute State funds, and prohibiting their use for collateral purposes would mean that the State fails to comply with its duty to honor these payments.
The decision is in line with the case law of the Federal Supreme Court, according to which the writ of payment may be offset with tax liabilities. With this recent decision issued by the São Paulo Court of Justice, taxpayers who wish to offer writs of payment as collateral in judicial proceedings may now also substantiate their claims with State-level case law.
Superior Court Of Justice decides that ICMS tax credits should not be taxed with corporate income taxes (IRPJ and CSLL)
The Superior Court of Justice (STJ) has established that the presumptive ICMS tax credits granted by States as a tax incentive should not be included in the corporate income tax (IRPJ and CSLL) base. According to the ruling, Federal taxation of State tax incentives would foster indirect competition between entities of the Federation, in violation of the Constitutional principles of Federal cooperation and equality.
Justice Regina Helena Costa, designated to draft the Majority Opinion, highlighted the competence and legitimacy of the States to grant benefits and tax incentives. Therefore, the Court understood that the concession of presumptive tax credits is a legitimate instrument of tax policy used by States, and although it represents a waiver of a part of their tax revenue, it is actually related to collective local needs, so that the Federation should not take advantage of this waiver for Federal tax purposes.
Taxpayers who have already collected the IRPJ and CSLL on presumptive ICMS tax credits may seek the reimbursement of these amounts before the Courts regarding the last five years.
São Paulo city Council requires tax return for benefit purposes
Through Decree 58,331, published in late July, the Municipality of São Paulo has imposed a new ancillary obligation on taxpayers who enjoy ‘tax benefits’ within the scope of the municipality, such as: tax exemptions; immunities; and administrative decisions that have a negative effect on taxation.
The electronic filing of this ancillary obligation will be done via the Tax Benefits Management System (GBF), in the form and within the deadlines that are still to be defined by the Municipal Government. Any changes in the tax benefits that are informed via the GBF must be reported within 90 days of the fact that triggered that change.
This Decree aims to make Municipal taxation more efficient. Once the tax return is filed, the Municipality may review the declared benefit ex-officio.
Superior Court of Justice rules that failure to pay declared ICMS is a crime
The 3rd Section of the Superior Court of Justice (STJ) has ruled that the lack of payment of declared ICMS in own operations constitutes a tax crime punishable by law. By six votes to three, the Court denied a request for habeas corpus to a businessman who failed to pay this tax.
According to the Majority Opinion drafted by Justice Rogerio Schietti Cruz, in cases where ICMS was collected from purchaser in the context of a supply chain, failure to pay the tax constitutes a criminal offence tantamount to tax embezzlement. The Majority Opinion emphasized that the ruling is based on economic principles, and that the practice of not paying this tax should be regarded as a crime so that businessmen do not have an incentive to fail to pay amounts declared as due.
This ruling is contrary to previous rulings issued by other sections of the STJ, such as the 5th and 6th.
