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Leite Tosto e Barros Advogados | Brazil | 1 Sep 2015

Confidential tax records: illegal shortcut in election law litigation

The Sao Paulo Electoral Department of Public Prosecution has filed over 5,000 suits against companies that have allegedly made campaign contributions over the legal limit. The common element in these cases is the government's use of the defendants' tax returns. Although this appears to be a powerful investigative tool, it arguably violates the defendants' privacy rights. As such, it is......
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Leite Tosto e Barros Advogados | Brazil | 1 May 2015

Premiums paid for extended insurance contracts cannot be subject to ICMS

State tax authorities levy value added tax (ICMS) for premiums paid by customers for extended-term insurance. Complementary Law 87/96 determines that any insurance paid should include ICMS. However, taxpayers do not agree. The Superior Court of Justice recently decided in favour of taxpayers, concluding that sums paid for extended-term insurance purchased separately while acquiring......
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Leite Tosto e Barros Advogados | Brazil | 24 Feb 2015

IRS Superior Court of Appeals holds that tax authorities must respect res judicata

After the Supreme Court declared social security contributions to be constitutional, the government imposed tax assessments and filed suit pleading rescission of res judicata. Taxpayers argued that the Constitution widely protects res judicata, and that once declared, it cannot be changed. The Superior Court of Justice ruled in favour of the taxpayers, recognising that res judicata is sovereign.
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Leite Tosto e Barros Advogados | Brazil | 18 Nov 2014

Court excludes unconditional discounts from IPI taxable base

The Supreme Court recently ruled to exclude unconditional discounts granted by a seller to a buyer on the sale of manufactured products from the federal excise tax (IPI) taxable base. However, until the court's decision is formally published, the effects of this judgment – particularly the amount of reimbursement that must be paid for IPI that was unduly collected in the past five years –......
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Leite Tosto e Barros Advogados | Brazil | 2 Sep 2014

When does a tax penalty become unconstitutional?

A significant increase in constitutional tax litigation has called into question the limits to be adopted by tax authorities when imposing tax penalties. While this issue remains unresolved, the courts are trying to establish at least basic guidelines. For now, taxpayers facing steep tax penalties should use the favourable decisions that have recently emerged to petition the courts.
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Leite Tosto e Barros Advogados | Brazil | 22 Jul 2014

Legal uncertainty over potential Supreme Court precedent on tax system

The Supreme Court is expected to release its 69th binding judicial precedent, which will prescribe a uniform interpretation of the unconstitutionality of granting value added tax benefits without the prior approval of the National Finance Policy Council. Issues such as the scope and retroactive effect of the precedent will significantly influence the framing of the issues in the litigation......
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Leite Tosto e Barros Advogados | Brazil | 15 Jul 2014

Beneficiaries of official misconduct – legal liability

Under the Law on Misconduct of Office, official misconduct requires an element of bad faith or dishonesty on the part of the government official committing the act. However, this requirement of bad faith is not applied to third parties, which has led to serious questions about the inclusion of third parties in cases where a third party directly or indirectly benefited as a result of official......
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Leite Tosto e Barros Advogados | Brazil | 3 Jun 2014

Abusive wait litigation on the rise

Brazilian law requires that many companies must be certified or registered with the Brazilian Health Surveillance Agency (ANVISA) before they can offer their products to market. This would appear to be a relatively simple, routine procedure. However, the failure by ANVISA to complete these administrative proceedings within a reasonable time has generated a growing number of so-called 'abusive......
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Leite Tosto e Barros Advogados | Brazil | 13 May 2014

Appellate obstacles to tax litigation cases remain 10 years on

After almost 10 years, the 45th Amendment to the Constitution (as well as the interpretive legislation issued since) has failed to standardise jurisprudence and streamline litigation. Unless appellate advocates can persuade the Supreme Federal Court to take advantage of the tools provided by the 45th Amendment in 2004, large backlogs, long delays and frustrating legal uncertainty are likely......
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Leite Tosto e Barros Advogados | Brazil | 25 Mar 2014

Government contractual penalties for delays challenged before the courts

In a recent case before the Federal Court of Brasilia, the court granted a preliminary injunction to block the Brazilian Electricity Regulatory Agency from applying delay penalties in a transmission line construction project, as the principal cause of the delay was inefficient government procedures in the granting of environmental licences, which were necessary before work could begin.
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