Notices

The proposals prepared by a work group created by the Ministry of Transportation, Ports and Civil Aviation (MTPAC) to unfetter investments and reduce the red tape in the port sector processes are under analysis at the Office of the President’s Chief of Staff. The draft will still return for new examination by the Ministry’s legal department. Then, the draft proposal may already be published so that the private initiative may learn about the new rules.

MTPAC created a work group formed by representatives of the Ministry and the National Waterway Transportation Agency (Antaq) to adjust the legislation of the port sector to modern requirements. The purpose is to propose new procedures and adequate the currently established ones in order to allow for the fostering of the port activities in Brazil, including the solicitation of foreign investors.

According to the Ministry, it took the group three months of work and 30 further meetings, which included getting together with entities of the sector.

Among the prepared proposals is the extension of the port terminal concession periods to 10 years more. The plan is that the areas may be exploited by the private initiative for 35 years, extendable for an equal period of time.

Today, the port leasing agreements have duration of 25 years, extendable for an equal period. It is expected that, as from the decree, the time period for exploitation of the areas may jump to 35 years under same conditions.

The plan would be valid only for new lessees. However, a precedent may be set so that lessees with shorter lease agreements may attempt to adapt accordingly.

Besides said matter, the Ministry work group is assessing the possibility of enlarging the areas and unifying the contracts, provided that they have same lessees. In this case, however, the separate bidding processes for the pieces of land may not be deemed feasible.

Necessary measures

Specialists consulted by ‘A Tribuna’ point out that the increase in the lease periods will provide more ease, safety and profitability to investors in the short run. Nevertheless, the plan has still to come along with adaptations.

One of these adaptations concerns the possibility of adjusting the already existing contracts to the new period. Moreover, issues such as the decentralization of decisions concerning the port sector and the professionalization of the port management were reminded as necessary to ensure advancements and increase the competitiveness of the Brazilian ports.

The recent struggle raised by importers with respect to the payment of the Tax on Manufactured Products (IPI) seems to have had positive results. Sundry importers decided to bring actions for non-payment of the tax at the time of resale to the national market of imported products.

According to importers, the application of the IPI tax can only take place at the time of customs clearance (imports). It is not possible that same tax apply again when the product leaves the establishment to be sold in the domestic market once no other manufacture occurs.

In June, Justice Marco Aurélio granted the injunction suspending the collection of IPI until a final decision is issued by the Federal Supreme Court (STF) following the filing of an extraordinary appeal by an importer that is discussing the issue in court along with the filing of a provisional remedy to operate a supersedeas.

In his decision, the Justice Marco Aurélio pointed out that, from the issue of the legislation and the National Tax Code – articles 46 and 51 –, a situation of excessive taxation was created to the importer when compared to the national manufacturer. According to the Justice, when producing goods in the Country, the importer is subject to the Tax on Manufactured Products (IPI) only when the product leaves the establishment while it is being cleared with customs and then on resale, although the importer is not actually manufacturing. “The application of the tax fails to level the national product to the similar imported one creating distortion between them”, he noted.

To Amal Nasrallah, tax lawyer, on analysis of the case, the Superior Court of Justice (STJ) deemed that the imported goods are subject to the application of IPI on occasion of customs clearance, and it applies anew on the resale operation, “once those are different taxable events, that is to say, it is not the case of “bis in idem” (double taxation on same act). With this decision, STJ reversed its prior opinion, which was in favor of the taxpayer”.

According to Nasrallah, although STJ has established that there is no “bis in idem” in this case, it is incumbent on STF to analyze the matter once such issues and double taxation are a matter of constitutional order. “Besides, the issue is very important for the constitutional jurisdiction in the tax field, since it deals with the limits for the definition of the cases of application of IPI”, he pondered.