- 72 - E. Determination of the Applicable Brazilian Law Petitioner contends that the applicable Brazilian law is correctly reflected in the Doniak-Kahan draft ruling which was never issued by the Brazilian IRS. Petitioner asserts that Brazilian law does not distinguish between gross loans and net loans. It further maintains that certain Brazilian Supreme Court decisions, like the Parana II decision, are distinguishable, because they involved financing of imported goods subject to Decree-law 401, not foreign currency loans. Even if Article 19 of the Brazilian Constitution were applicable to public-sector entities' net loan interest remittances abroad, petitioner maintains that Article 19 prevents taxation only between the different governmental levels. Thus, petitioner contends, while Article 19 might prevent the Brazilian Federal Government from taxing certain State-level and municipal-level autarquias (e.g., the Minas Gerais decision), Article 19 would not prevent the Central Bank and other Federal-level autarquias from being subject to withholding tax on their net loan interest remittances abroad. Alternatively, petitioner maintains that this Court, pursuant to the act of state doctrine, must accord conclusive effect to the March 1984 Brazilian IRS private ruling issued to the Central Bank. As even petitioner's own experts generally acknowledged that the borrowers-to-be theory applied in the March 1984 Brazilian IRSPage: Previous 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 Next
Last modified: May 25, 2011