The Federal Supreme Court declined to hear the Action against the Violation to a Constitutional Fundamental Right (ADPF no.371), filed by the Brazilian National Confederation of Transport (CNT), which questioned the validity of the inclusion of the shipping agent on the list of the joint and several liable taxpayers of the Import Tax, put into effect by the sole paragraph of article 32 of the Decree- Law no. 37/66, and subsequently amended by Decree- Law no. 2.472/88.
The CNT argued that only the Supplementary Law would be capable of governing the "tax liability" issue, strictly abiding by the Federal Constitution of 1988.
In the case at hand, considering that both Decrees-Law nº. 37/66 and nº 2.472/88 have not been received as Supplementary Law, the list of taxpayers responsible for the payment of the tax would be the list laid down in the National Tax Code (which has been in fact received as Supplementary Law). Thus, the shipping agent would only be responsible for the Import Tax in the hypothesis the latter had caused the taxable event of the tax obligation or was at fault for not having paid the tax.
The CNT had requested that a preliminary injunction were granted in order to suspend the effects of the provisions questioned, as well the stay of all cases or legal decisions effects related to the lawsuit until the Federal Supreme Court´s final decision.
The Reporting Judge Edson Fachin, requested the Executive Branch representatives to produce their statements prior to deciding about the preliminary injunction.
The Office of the Federal Attorney General came forth denying the action for a provisional remedy, rendering an opinion that a third party´s tax responsibility is in line with the nature of the agency agreement.
The Office of the General Counsel for the Federal Government, in its turn, preliminarily rendered an opinion not taking cognizance of the suit, and should the admissibility barrier were overcome, that the provisional remedy were denied. The Office of the Federal Attorney General further noted that the legal provisions mentioned by the CNT have been repealed by the Provisional Presidential Decree (MP) no. 2.158, dated August 24, 2001, which, however, reproduced again the referred legal provisions mentioned by the CNT in the same law, and with the same content of the decrees that have been questioned.
The Reporting Justice denied the Action against the Violation to a Constitutional Fundamental Right (ADPF) for considering it defective, becoming the trial of the preliminary injunction ineffective. He also noted that the Federal Supreme Court had already pacified this issue in the sense that, on ADPF, it is unviable to verify the compatibility of a pre-constitutional rule with the Constitution in force at the time it had been enacted.
Discontented with the decision, the CNT filed motions for clarification which have been unanimously rejected by the Federal Supreme Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.