The Minister of the Federal Supreme Court ruled on Wednesday, 16, to reestablish, in part, the effectiveness of the President’s decrees on the Financial Operations Tax (IOF). On the other hand, the magistrate maintained the overthrow of the stretch of the decree dealing with the taxation of the draweed risk operations.
Regarding the minister, the minister decided to “interpret it according to the Constitution”, nullifying the decree in part. From the initiative of the parliamentarians, only the stretch that determined precisely the overthrow of the IOF on the draweed risk was just left.
“By providing for this ‘normative excess’ (of the draweed risk), the presidential decree intended to regulate the law beyond the constitutionally provided for and, consequently, became impugnable, thus allowing the incidence of Article 49, V, of the Federal Constitution, because in these hypotheses it is up to the National Congress to support the normative acts of the executive branch that exorb the regulatory power”, allowing the “decree to issue the legislative body”, Legislature Susters the presidential decree, ”said Moraes.
In the decision, Moraes stressed that the Federal Constitution assures the President of the Republic the possibility of editing a modifying decree of IOF, “as it is very important instrument of regulation of the financial market and monetary policy, provided that, however, the strict limitations provided for in legislation”.
He pointed out that the regulatory and extrafiscal functions “justify the exception of incidence of tax principles of legality and priority, with the purpose of seeking greater economic development, with balanced and fair social development”.
Scratch
Moraes wrote that the drawee risk operations observe different dynamics of credit operations. “There is therefore no definition of ‘drawee risk’ operations as a credit operation, as these operations observe a different dynamic, not assimilable for loans or financing.”
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The magistrate stressed that “the normative equalization carried out by the presidential decree of ‘draweed risk’ operations with ‘credit operations’ have hurt the principle of legal certainty because the public power itself has always considered it to be different things.”
According to him, the risk operation draweed, as a mode of “anticipation of receivables”, corresponds to a commercial transaction on credit rights.
