Tax Law

Course Fraga
Prof. F. Anderson Azevedo
Must Read
Constitution 1988 - CF/88 Law 5172/66 - National Tax Code - CTN (118/02/2005 com
plementary law.) Decree 70.235/72 - tax administrative procedure. Law 4320/64 -
Budget Public - supplementary law 101/2002 (law of fiscal responsibility) Law
6830/80 - Performance Audit. Article 3 CTN - Tribute's all cash benefit,
or mandatory currency whose value can be expressed in it, established by law, w
hich does not constitute punishment for wrongdoing that is charged by administra
tive activity fully bound. Provision is a fulfillment of an obligation. Legal Sa
nction Precept = STATE
Obligation (bond) prescription
Natural
Precept = lack of = launching = decay Sanction lack of enforcement of tax credit
= Precept Sanction
Moral
= SOCIETY
Art CTN 173 - 5 years - decay - for lack of Article 174 CTN release - five years
- prescription - stems from the lack of implementation provide for legal compli
ance with tax matters. The tax penalty is not a tort. Tax obligation - is a pena
lty, but the breach of an obligation creates a penalty. Tax penalty exists in tw
o aspects: Mora disadvantageous Civil Penalty Criminal Tax (tax evasion) - crime
Note: Sources of Tax Law - the law includes laws in formal and material and may
be the source of the tax law: CF/88; Constitutional Amendments ; Complementary
Law, Law Meeting; Law Committee and Temporary Measure, as examples of formal law
. Page 1
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
Are also sources of tax law or the laws Materials standards of conduct establish
ed by the governing bodies of public administration that is of interest to regul
atory standards established by the formal laws. These are: Decree, the Decree: t
he Normative Declaratory Act, the Instruction, the resolution, the Circular Lett
er of the Central Bank, the Service Orders, etc.. We say that the sources meet t
he formal criteria of integration of legal rules, where there is the aspect hier
archy between the standards, the temporal aspect where the norm latest repeal th
e older standard and the aspect of specificity, the more specific standard is us
ed over more general rules. Within these criteria we found that in accordance wi
th the principle of strict legality Tax law is a relevant tool to create tax lia
bilities in its formal sense. And the law regulating material, making it possibl
e to recover the tax.
Ordinary Tribute - art. 97 CTN
• • • • Tax - supplementary law - art. 154, I CF/88 Fees - statutory law, art. C
TN 1997 Contribution Improvement - statutory law, art. 97 CTN. Contributions F
rom Intervention - statutory law, art. 97 CTN. From Social Development - suppl
ementary law, art. 195, § 4 CF/88 Compulsory Loan - supplementary law Art. 148 C
F/88
•
Jurisdiction Local • National • State Federal District Municipal
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Tax Law
Course Fraga
Prof. F. Anderson Azevedo
Species of Taxes
Division Tripartite Article 5 and Article 145 CTN CF/88
Taxes - art. 16 CTN. Fees - art. 77 CTN
Division TetraPartite
Taxes - art. 16 CTN Rates - art. 77 CTN
Division PentaPartite
Taxes - art. 16 CTN Rates - art. 77 CTN
Contribution to Improvement - art. 81 Contribution to Improvement - art. 81 Cont
ribution to Improvement - CTN CTN art. 81 CTN Contributions From Intervention -
art. 149 CF/88 De Fomento Social - art. 195 CF/88 Contributions From Interventio
n - art. 149 CF/88 De Fomento Social - art. 195 CF/88
Compulsory Loan - art. 148 CF/88
A) Taxes - can be collected independently of any specific state or against the p
rovision. Taxes are considered as not bound strictly observe the principle of ab
ility to pay that is earned by the assets, income or consumption by the taxpayer
. The constitution distributes power to the imposition and collection of tax, ex
clusively by federal entities, allowing the Union to call the federal residual p
ower (only she can create through new taxes complementary law). A1) Federal taxe
s: 1) Income Tax and Benefits of any kind - IR IRPF, income tax, IRRF 2) Tax on
Industrialized Products - IPI 3) tax Territorial Rural - ITR 4) Tax Credit and F
inancial Operations - IOF 5) Import Tax - II 6) Export Tax - IE 7) Tax on Large
Fortunes - IGF Note: Depends regulated by complementary law. 8) Tax Special Warf
are - IGF Obs: Focuses motivated by war or its imminence, depending regulated by
statutory law, which may be levied the same tax year of its creation and can be
an extra in taxes already. A2) State Taxes: 9) Tax on the movement of goods and
services of telecommunication and transport intercity and interstate - ICMS Not
e: Electricity is movable. 10) Property Tax Vehicle Automotive - IPVA 11) Taxes
on Goods and Transfer of Rights - ITD Page 3
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
Note: Focuses on the transmission causa mortis on all goods in the sale of inven
tory and free (adoption) of assets. A3) Municipal Taxes: 12) Property Tax Territ
orial Urbana - IPTU Note: See Art 32-34 CTN 13) Tax Services of any kind - ISS N
ote: See list attached to a supplemental law No. 116/2003. 14) Tax on transfer o
f immovable property - ITBI Note: Focuses on the sale of expensive property inte
r vivos. What is the tax you get? Be for donation - ITD, if purchasing ITBI.
3) TAX - Article 77 CTN - can be charged by the Union, State, City, DF because
regular exercise of police power or for providing availability of specific and d
ivisible public services rendered by public authorities. The rates are quite unl
ike the taxes tied to a counter service by the government. It follows from the p
ower of the Empire (restrictions on economic freedom). Sample Permits - sort of
base. All may charge a fee to conduct the services provided. Respect to the allo
cation of all federal entities may charge = = functional competence. Jurisdictio
n to review the environment: all common federative power (IBAMA, and FEEMA DEPAR
TMENT OF ENVIRONMENT). 4) made contributions IMPROVEMENT - can be charged by the
Union, State, City, DF, on grounds of public work that generates real estate ap
preciation. The collection will be limited by the cost of construction in genera
l and the actual value of the property in individual terms. By the principle of
equality of taxation, the municipality, for example, may not charge such assista
nce from residents of a street that was paved, as other streets in the center of
the city did not have the benefit charges. According CF/88 may be charged the f
ollowing social contributions: a) Intervention (art. 149 CF/88) a.1) Contributio
n of Economic Intervention 1) under the Additional freight for renewal of Mercha
nt Marine - ASFRMM 2 ) of the Universal Service Fund for Telecommunication Syste
ms - FUST 3) National Fund for Development of Telecommunications - FUNTEL 4) Con
tribution of intervention in Domino Economic Areas of Oil and Audio Visual - CID
E 5) Contribution of Public Lighting - CIP or Cosipa a. 2) Contribution of Vocat
ional Intervention 1) Contributions Union Page 4
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
2) Contributions of Professional Regulatory Bodies - OAB, CREA, CRECI a.3) Socio
Economic Contribution of intervention 1) Contributions to the "S" System - SESI
, SENAI, SENAT, SENAC, SEBRAE, SESC. b) Contribution of Social Development - Art
icle 194 and 195 CF/88 b.1) Contributions to Direct Development. 1) Provisional
Contribution on Financial Transactions - CPMF 2) Social Contribution on Net Inco
me - CSSL 3) Social Integration Program - PIS 4) Program of Support to the Publi
c Served - PASEP 5) Contribution to Finance and Social Services - COFINS 6) Sala
ry Education (SE) b.2) Social Contributions of Labor Characteristics 1) Guarante
e Fund for Length of Service - FGTS 2) National Social Security Institute - INSS
3) Insurance, Accident - SAT Notes: 1) The contributions of intervention are th
e principle of responsibility of the Federal Government, except CIP, whose compe
tence and municipalities. Can be created by statutory law and meet the Principle
s and the preceding and Noventena. 2) The contributions of social development ar
e also the principle of federal jurisdiction. They are created by law complement
and serve the principle Nonagesimal. 3) The social character pension contributi
ons can also be created by states and municipalities, as its employees and serve
rs to create a pension fund or institute. Eg Previ the city of Rio de Janeiro, t
he state of Rio de Janeiro has the Instituto Rio IPRJ and Welfare. 5) Compulsory
Loan - may be charged by the Union exclusively by supplementary law, on an inte
rim and not final,€due to: a) Public Calamity and Foreign War b) Investment of n
ational interest. Note: In cases of urgency, given the external public calamity
and war do not apply the principles of Anteriority and Noventena. (Art. 148, I,
II CF/88). Constitutional Principles Tax: 1) Principle of Legality: Exceptions:
IPI, IOF, II, IE. 2) Principle of the above - states that the tax law will be fu
lly effective in the next fiscal year that have been published in order to estab
lish or of increasing page 5
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
tributes. Are exceptions: IPI, IOF, II, IE, IEG, Compulsory Loan, in cases of pu
blic calamity and war abroad and social contributions to social development. 3)
Principle of Noventena - establishes a vacatio Legis 90 days from the date of pu
blication of the law which instituted or majora tribute and fully effective. Exc
eptions are: IR, IOF, II, IE, IEG, Compulsory Loan, in cases of public calamity
and war abroad, social contributions to social development and the basis for cal
culating the property tax and vehicle tax. 4) Principle Nonagesimal - is applied
only to social security contributions for social development that also determin
es a vacatio Legis 90 days from the date of publication of the law which institu
ted or increased social contribution and their full efficiency. The difference b
etween this principle and the principle of Noventena, is that the principle of N
oventena is applied in parallel to the previous one, and already at the beginnin
g Nonagesimal created or increased the contribution could be about the same tax
year of publication of the law. 5) Principle of Non-retroactivity of the Taxes A
ct. Exceptions are: Art 106 CTN a) When the law is explicitly interpretive (see
supplementary law 118/2005) b) In the final acts will be judged when the law imp
utes less severe penalty or fail to consider the act as inflation practiced law
( Application of the Principle of Least Severe Law Criminal Law). 6) Principle o
f Non Forfeiture - states that are prohibited from collecting illegal taxes. The
act of confiscating necessarily involves the figure of Finance and should not b
e confused with another institute of law that have practical effect of the compu
lsory transfer of private property for public power, such as: a) Expropriation -
public interest required to indemnify, market value, affecting public policy. b
) expropriation (art. 243 CF/88) - is full of loss of equity = / = for confiscat
ion. c) Penalty Income, seizure and abandonment (if not rectified in 90 days) (c
rime of smuggling and embezzlement) 7) Principle of Immunity - according to CRFB
/88 is forbidden to tax the following assumptions: a) between the feel Federatio
ns (reciprocal immunity), b) Temples of any worship c) Political Parties and the
ir Foundations, Workers Union and philanthropic. d) Books, newspapers, periodica
ls and paper for its printing. Immunity is in fact an order of constitutional le
gislator to the ordinary legislator, so that this tax does not cover the situati
ons described in the Constitution itself. In this sense some teachers admit that
the Office of immunity are also applied fees, such as the prohibitions of art.
5 CRFB/88, relating to legal fees in the event of lack of economic conditions (g
ratuity of justice), page 6
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
Habeas Corpus, Civil Action Service and fee and charge for issuing birth and dea
th certificate in cases of demonstrated need.
Before the economic fact After the Fact economic or tax credit already exists
Immunity
Born and constitutional rule. Prohibition of the incidence Fact Generator (there
can be no recovery of tax in this situation. Ex. Church
Exemption
Statutory law
Remission
Statutory law
Amnesty
Statutory law
Fact generator Forgiveness Forgiveness Total or Partial Partial or Total Obligat
ion Home - money Obligation Accessory Do not do eg property tax value Hi
storic and also Penalty Penalty Only
8) Principle of non-cumulative - even down to the ICMS and IPI that there should
be no recovery of such taxes cumulatively along the production chain and distri
bution fitting to the end consumer the total financial burden. IPI - GST non-cum
ulative. 9) The principle of selectivity - is a sub principle of fairness which
states that the higher the social concern about the product the greater the rate
and vice versa.
Tax Obligation:
I) Nature Home - money Accessory Do not make the Section 113 CTN.€Elements:
1) Subject Assets (imposing obligation) - Constitutional powers as federal entit
ies. 2) Subject Liabilities - on the obligation and duty Direct - contributor
- one who performs the Fact Generator, directly responsible under the length of
the tax obligation. Indirect - responsible for the Succession Individuals -
died / disappeared Page 7
II)
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
Corporations - Incorporation
Solidarity Direct / aims - there is no legal presumption guilt Indirect / Su
bjective - no blame rank in the payment of the liquidator of the bankrupt - Unio
n - Social Security - State - ICMS - Municipality - ISS Replacement forwards and
backwards - art. 150, § 7 CRFB/88 Ex: A = Factory, B = Big Distributor, C = Sma
ll Distributor, Retail = D, E =
Drunk.
3) Cause (law requires) - because of the existence of duty 4) Object - Fact Gene
rator III) Fact Generator - can be seen in two aspects: 1) The first concerns th
e creation of generic and abstract hypothesis, by the legislature, authority, wh
ich will create a hypothesis of tax incidence in the wider sense. 2) Fact Genera
tor strict sense - is the chance occurrence of material provided by law. In fact
the taxpayer or when it previously established practice in tax law. That genera
tor can be: a) Simple or Direct - occurs in a single operation. Ex GST b) Contin
ued - is repeated for each new fiscal year. Eg property tax and vehicle tax. c)
Periodic - every new fiscal year shall be observed in the presence or absence of
Fact Generator. Eg IR
Release Tax and Tax Credit
Once the triggering event occurred physically comes to the state tax credit that
must be formally recognized through its launch to constitute a formal instrumen
t of charge (art. 142 and CTN 144). The Launch is an administrative act that mee
ts the principles of art. 37 CRFB/88, and also the principles of compulsory and
binding. The entry must identify the taxpayer's tax liability, describe the even
t generator, provide the basis for calculating the tax due, the applicable rate
and penalty if necessary. The launch can be: a) Simple, right or Office - the go
vernment is responsible for payment of the tax it even launched. Ex IPVA and tax
es. b) Joint Declaration or - the taxpayer is required to provide information to
 Treasury in order to enable the launch. Eg: the Declaration of ITR. Note: Ex Tu
nc has a declaratory nature. Release - an administrative action that generates t
he OT. Page 8
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
Article 142 CTN - Legal Nature Constituent. Article 144 CTN - Legal Nature Decla
ratory (ex tunc). The Supreme Court says the launch represents a formal charging
instrument declaring the occurrence of Fact Generator. (Nature constituent, as
a rule) c) Approval for Release, the taxpayer is required to collect advance tax
calculated by himself. Ex ICMS and IPI Note: The Treasury has a term of five ye
ars decadencial paras launch the tribute and other limitations period of five ye
ars to run your credit. (Art. 173 and 174 CTN
Ways to Stay of Chargeability Tax Credit - art. 151 CTN
a) Moratorium - postponement of the due date: awarded by the Public b) deposit t
he entire amount due - does stop interest and penalties. If not CT founded the t
axpayer withdraws money adjusted by the Selic rate. c) Disputes on Administrativ
e Procedure - Notice of Infraction within 30 days to appeal. In this contest eve
ry defense should be exhausted (eg application of expertise). If the decision is
positive: it will appeal to the Board of Tax referendum - forcefully. If appeal
is rejected by the ordinary taxpayer to the board. It is required to deposit 30
% of the amount required. Appeal of disagreement when there is conflict between
the classes of the council. d) Injunction - Granted on a Writ of Mandamus - not
sufficient to join with the Writ of Mandamus, it must be granted the injunction.
e) interim injunctions in other processes or injunctive relief - Complementary
Law 104 in 2001. f) Installment Debt - when properly paid a declaratory action m
ay be brought in these cases, however, the CT will not be suspended because ther
e is no deposit.
Forms of Termination of Tax Credit - art. 156 CTN
a) payment b) compensation - claims of a similar nature or collected in the same
body as long as allowed by law. c) Transaction - in tax does not exist. Presupp
oses agreement on the release of obligations of the parties.€d) Waiver - forgive
ness - to forgive or verb) Prescription and Decay - The decay occurs before ther
e credit, so you can not extinguish that does not exist. f) Converting warehouse
sale - payment g) Advance payment and approval of release h) Assignment of paym
ent - if you have debt to those who pay tribute, or does not consider correct th
e charge. Mandatory judicial i) administrative decision unreformable - is the pr
ocess of contest sanctioned by the council. Page 9
Tax Law
Course Fraga
Prof. F. Anderson Azevedo
j) a final judicial decision k) the action in pay in real estate.
Forms of Exclusion of Tax Credit - art. 175 CTN
a) Exemption - FG occurs is unable to collect payment, but may be charged at OT
accessory. b) Amnesty-affects only the penalty. Taxes history - the fines are no
t penalties.
Finance Administration
Since the CT had been terminated or excluded or that is not already suspended un
der art. 151 CTN, we consider it good for recovery, which must be preceded by it
s entry in the Registry of the outstanding debt. At this time. We will have an e
xtrajudicial execution instrument with certain characteristics, liquidity and li
ability. The registration of CT in the Debt Registry Enables suspend the countin
g of the prescription for 180 days or until the time of distribution of tax fore
closure action. Materially the application of tax foreclosure action is extracte
d from the certificate in the Registry Debt Turns certifying the registration of
the claim, once checked and accepted by the judge interrupted the limitation pe
riod, pursuant to Law 6830/80. The taxpayer-debtor, once it has received the cit
ation, has a term of five days from receipt to pay for goods or attachment name.
Once notified the taxpayer of the seizure has 30 days to present the implementa
tion of embargoes.
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