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Administrative Law
| The Administrative Law
panel focused on transport and transit issues. The
responsibility of the owner for traffic fines exclusive of
the driver was the general theme of the debate, which
spread in different directions. Success in isolated
lawsuits against such a liability was contrasted with
operational difficulties in implanting it, because it
is impractical to include all the traffic bodies in the
country in the action.
Problems regarding the impediment of vehicles in
the event of undue appropriation and embezzlement
suffered by car rental and leasing companies were
debated, suggesting intervention by public security
organs to facilitate the annotation of these cases in
judicial lien systems.
Other issues addressed referred to the recent
regulation of dismantling vehicles (Law 12,977 / 2014)
and demands by regional bodies for vehicle inspections
outside the legal hypotheses, which are particularly
burdensome for car rental and leasing companies.
The panel ended with a talk by Marcelo Araújo
about the National Register of Vehicle Possession
and temporary Use (RENAPTV).He showed several
inconsistencies in the wording of the resolution
creating RENAPTV; inconsistencies which do not
diminish the merit of the general concept of the
register.
Tax Law
| The Tax Law panel focused on two main
issues: pressure from CONFAZ for the regulation of
direct sales under penalty of applying a linear rate
of 17% in ICMS, and the “São Paulo IPVA”, a state
regulation that requires rented or leased vehicles
that are driven in São Paulo to pay tax in that
state, generating double taxation and significant
administrative costs.
In relation to direct sales, there was a
consensus that this is an issue that concerns vehicle
manufacturers and rental or leasing companies.
The linear increase in tax for every category will be
absorbed uniformly by the different economic agents
and the problem will fall mainly on the automakers,
which will have problems absorbing the higher selling
price of the vehicles.
The importance of avoiding the adoption of one-
dimensional criteria, such as a minimum period of
twelve months of ownership before characterizing
“resale” was stressed, as many other factors are
considered in the business decision to keep ownership
of the vehicle, such as its maintenance history, the
occupancy rate of the fleet, and so on.
The “São Paulo IPVA” is a serious problem with the
potential to destroy the consolidation of the national
car rental and leasing business because of tax issues.
The peculiar São Paulo IPVA system, if replicated
by other states, produces significant compliance
costs and, when associated with the joint tax liability
of the lessee, exposes customers to the states’ tax
war. There was consensus on the importance of
immediate action to collaborate on the success of the
ADI pending in the STF, which seeks the declaration of
the São Paulo IPVA as unconstitutional.
Symposium and Conclusion
| At the
Symposium other issues not included in the original
lineup were discussed. Of note was the testimony
from André Campos Barroso on the experience of the
first car-sharing company in Brazil. This is the new
frontier in the car rental and leasing industry and is
already achieving positive results.
In conclusion, the Forumoffered an unprecedented
opportunity for delegates to discuss legal issues about
which there is little or no professional literature. It was
a rich opportunity in which best practices were shared,
problems discussed, knowledge spread and solutions
presented.
* Adriano Augusto Pereira de Castro
A lawyer specializing in the car rental and leasing industry. Legal Advisor to ABLA, FENALOC and SINDLOC / MG. A consultant in public-private
partnerships and United Nations Development Programme (UNDP) concessions. Master in Business Law and Professor of undergraduate and
postgraduate studies in law at the Promote Law School and at UNIBH.