anuário brasileiro do setor de locação de veículos 2016 80 Law for the Disabled The main legal change of 2015 for car rental companies was, without a doubt, the Law 13.146/2015, which established the “Brazilian Law for the Inclusion of Handicapped People” (Statute of the Person with Disability). As praiseworthy as it is as a civilizacional milestone for the process of social inclusion of handicapped people, the Law 13.146/2015 fell into several technical mistakes when broaching this reality. The rental industry suffered impact from the clause 52 of the Law 13.146/2015, which sets the obligation of offering 5% of adapted vehicles of the total fleet, an excessive percentage settled with no technical study or society consultation. Representing ABLA and FENALOC (National Federation of Car Rental Companies), the National Transport Confederation (CNT) entered before the Supreme Federal Court (STF) a direct lawsuit for unconstitutionality, questioning the legitimacy of the norm under several angles. The industry waits with apprehension the request for a restraining order which will be judged by Minister Dias Toffoli, expected to occur in the first semester of 2016. PIS/COFINS Legislation In Tributary Law a remarkable effort was perceived in all spheres to raise the collection of taxes. In the federal sphere, in 01/01/2015, the Law 12.973/2014 altered the legislation of PIS/COFINS (social security contributions) to broaden the concept of “invoicing” and to include in it “the income of the activity or main object of the legal person”, also in the presumed profit regime. This way, the car rental companies started being imposed taxes by PIS/COFINS, regardless of their fiscal examination regime (real profit - non cumulative or presumed PIS/CONFINS – cumulative PIS/CONFINS) in such a manner that, in 2015, the last of the great possibilities of tax saving by the rental companies ceased. ICMS on interstate sales In May 2015 the Constitutional Amendment 87 (EC 87/15) was approved, changing the ICMS (Tax Over the Circulation of Merchandise and Services) regime for interstate sales with the aim of balancing the tax income of internet sales and balancing the distribution of tax income among buyer and seller States. Under the speech of isonomy, the EC 87/15 embedded significant tax raise for interstate purchases which can potentially increase in up to 6% (!!) the cost vehicle acquisitions by the rental companies. The whole year went by with the apprehension of the enormous increase in tax paying in perspective to only in the end of December having the security that the previous ICMS regime in Direct Sales would keep in force (ICMS 51/2000 Convention). 2015: the Juridical year IPVA for car rental companies Regarding the IPVA (Tax Over the Property of Automotive Vehicles), the year went on with more States implementing special regimes for tax verification of car rental companies, with the imposed licensing in the State where the vehicle will be driven. Note that the IPVA is a tax which has as special criterion the residence of the vehicle owner and not the place of its circulation, characterizing the unconstitutionality of these laws. This is one more battle in the fiscal war among the States which are fighting against each other, not exactly the modest IPVA income, but the very profitable income of the ICMS over the acquisition of vehicles. These measures create “tributary barriers”, which artificially reduce the competition capacity of companies from other states and, graver, has the potential to provoke caos in the rental industry: all companies could be obliged to keep the updated register where their vehicles are driven to pay to the respective States the proportional IPVA regarding the days when the vehicle was in another place. Amazonas is one of the States which adhered to the “fashion” of the special regime of the IPVA in 2015, editing the Complementary Law 156/2015 to consider a contributor of the IPVA “the legal person of private right that performs the activity of car renting, in relation to the fleet located in the State of Amazonas, even if the vehicle is registered, inscribed, enrolled or licensed in another unit of the Federation”. The same law established mutual responsibility of the IPVA “to the legal person of private right, as well as the business partner, director, manager or administrator, who rents a vehicle for use in this State, in relation to generating facts occurred in exercises in which the vehicle is under rental”. This way, the States intend to hostage the rental company clients to subjugate them to these abusive demands. Mato Grosso do Sul put into practice a different approach regarding the special IPVA regime. To cover up the tributary appetite, the Law 4785/2015 established the compulsory licensing of vehicles in the State, without making direct reference to the IPVA, certainly to disguise the demand as a traffic norm and make it more difficult for tax payers to have access to their rights. The State of Mato Grosso do Sul law, as its congenerous from other States, violates the exclusive competence of the Union to legislate on traffic and transport, violates several constitutional limits to the power of taxing by compelling the change of the rental company’s address without fair title, it threatens the federal pact by restraining the access to the market of the State of Mato Grosso do Sul to other states rental companies, among others. Summary Statement 492 In the midst of so many legal innovations, there was a veto which frustrated everyone. The bill 4457/2012, which “adds Single Paragraph to article 566 of the 10.406 Law, from January 10 of 2012 (Civil Code), to limit the solidarity of the renter to the hypothesis of deceit or guilt”, was approved by the National Congress and vetoed by the President. That was the highest hope of the industry to overcome the Summary Statement 492 by STF, which for decades has been affecting the vehicle rental companies by making them responsible without legal prevision by the damage reparation to third parts by renters using the rented vehicles. Jurídico
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