- 82 - reasoning because, as petitioner's experts assert, the Brazilian Supreme Court Justices failed to appreciate that Decree Law 401 applies only to import financing loans, not foreign currency loans.38 Of significance for our purposes in determining the applicable Brazilian law is that these Brazilian Supreme Court decisions, notwithstanding petitioner's experts' criticism of them, represent the Brazilian Supreme Court's legal position. Over the years, the Brazilian Supreme Court, in Parana II and other similar cases involving foreign currency loans, has consistently held that public-sector entities, like the Central Bank, are immune from paying withholding tax on their net loan interest remittances abroad under Article 19 of the Brazilian Constitution. We do not accept petitioner's contention that Brazilian law fails to distinguish between net loans and gross loans, in situations in which the borrower/remitter is a public-sector entity having an immunity from taxation pursuant to Article 19 of the Brazilian Constitution. In addition to the expert testimony the parties have offered and the Brazilian Supreme Court cases discussed above, other evidence in the record confirms that the 38 We are hesitant to substitute our judgment on a matter of Brazilian law for that of the Brazilian Supreme Court Justices who reported these decisions. In any event, this is a matter which we need not resolve, as in its subsequent decisions (which petitioners' experts agree involved foreign currency loans) the Brazilian Supreme Court has continued to utilize and apply Parana II's net-loan-versus-gross-loan rationale. We further note that even the Brazilian Government and the Brazilian IRS appear to have attached little, if any, practical significance to the fact that the loans made to the Central Bank under the DFA's and CGA's were currency loans and not import financing loans.Page: Previous 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 Next
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