- 73 - ruling did not reflect the applicable Brazilian law, we will deal with petitioner's act of state argument separately infra. Respondent, on the other hand, primarily contends that public- sector entities, like the Central Bank, were not required to pay withholding tax on their net loan interest remittances abroad because of their immunity from taxation under Article 19 of the Brazilian Constitution. Respondent maintains that this was the applicable law in Brazil both before and after 1984, as reflected by the Brazilian IRS's issuance of SRF 368 in June 1980 and by certain Brazilian Supreme Court decisions, including the Parana II and Santo Andre I decisions. Respondent further asserts that these Supreme Court decisions involved foreign currency net loans, not net loans for the financing of imported goods. We agree with respondent. The record reflects that to help meet the Brazilian Government's and the Central Bank's commitment to provide DARF's to the foreign lenders during the relending periods of the DFA's and CGA's, top Brazilian IRS officials concocted an elaborate legal fiction--the borrowers-to-be theory. In light of the States, municipalities, and other public-sector entities with foreign net loans, it was not politically feasible for the Brazilian Government to change the applicable Brazilian law and require all public- sector entities to pay withholding tax on their net loan interest remittances abroad. Moreover, as these public-sector entities, like the Central Bank, were immune from paying withholding tax onPage: Previous 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 Next
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