Newsletter - KLA August

Check below the most important market news analized by KLA specialists. In the August edition, you will find matters related to Dispute Resolution and Arbitration, Tax, Antitrust, Public Law, Capital Markets and Corporate and M&A.

COMPETITION & ANTITRUST

CADE ADOPTS NEW RESOLUTION TO GOVERN ITS INTERNAL REGULATIONS

The new Internal Regulations of the Administrative Council for Economic Defense (“CADE”) will come into force on September 24, 2019. The resolution proposing the amendments was published for public consultation in the second half of 2018 and was approved by CADE's Tribunal mid-June.

In addition to the amendments in the text to address the standard concerns as to the adequacy of the existing regulations that were enacted by Law 12.529 / 2011 (“Brazilian Competition Law”), the new text introduces changes relating to the commencement of proceedings and deadlines. Among said changes, we highlight the ones pertaining to motions for clarification of decisions. Pursuant to Article 221 of the new Internal Regulations, motions for clarification no longer suspend the enforcement of CADE's decisions.

With these changes, the notion of opposing motions merely to delay the enforcement of CADE's decision is no longer viable. Conversely, parties found to be in violation of the provisions of the Brazilian Competition Law, will now have to act swiftly in order to respond to or avoid the impending consequences of CADE's decision, such as obtaining a court injunction to suspend the payment of a fine, for example, given the fact that the filing of a motion for clarification can no longer prevent CADE from enforcing a decision demanding the payment of the fine in full.

To access the table with the changes provided by the new Internal Regulations in Portuguese, please access.

TAX

FEDERAL REVENUE MAY CHARGE INTEREST (SELIC) BETWEEN THE DATE OF INCLUSION OF TAX DEBTS IN AMNESTY PROGRAM (REFIS) AND THE DATE OF THE CONSOLIDATION OF SUCH ADHESION

The so-called amnesty programs or special installments programs have already become a common practice in Brazil.

A recent and emblematic program was the so-called “REFIS da Crise” (Law No. 11.941/2009), in which taxpayers who opted for the installment payment should calculate the amount they intend to pay, applying the fines and interest reductions, and were allowed to pay a minimum installment, until the consolidation phase of the program, when the taxpayers could access the Federal Revenue system and effectively indicate the debts to be paid in installments, and then start to pay the correct amount of the installments.

Nevertheless, due to several failures in the system used by the Federal Revenue, there was a delay of approximately 20 months for the release of the consolidation phase, and in the meantime, many taxpayers continued to pay the minimum installment.

After the consolidation, the Federal Revenue started to charge interest (SELIC rate) on the amount of the debts in relation to this period between the inclusion of the debts and the consolidation of the program.

Some taxpayers went to court, claiming that the delay was caused by the Federal Revenue itself, reason why no interest should be due during such period.

Recently, however, the Superior Court of Justice considered valid the charge of such interest, even though the taxpayer did not cause the delay, since the interest would be intended to compensate the non-payment of the taxes in a timely manner in a broad concept.

NATIONAL TREASURY LAUNCHES OFFENSIVE ATTEMPTING TO REPLACE JUDICIAL GUARANTEES BY FULL JUDICIAL DEPOSIT IN CASH OF...