- 90 -
March 1984 private ruling still conflicted with SRF 368, despite
the efforts of top Brazilian IRS officials, in devising the
borrowers-to-be theory, to distinguish from SRF 368 the Central
Bank's restructuring debt interest remittances during the relending
periods of the DFA's and CGA's.44
We conclude that petitioner has failed to establish that the
act of state doctrine is applicable. Petitioner has not shown that
the March 1984 Brazilian IRS ruling was anything more than perhaps
an administrative advisory opinion.45 We are thus not required to
accord conclusive effect to the March 1984 Brazilian IRS ruling
issued to the Central Bank. Rule 142(a); Republic of the
Philippines v. Marcos, supra.
G. Conclusion
We hold that the Central Bank was not required, under
Brazilian law, to pay withholding tax on its restructuring debt
43(...continued)
regime, he also indicated that the Brazilian courts had more
leeway than the Brazilian Congress. He related that Brazil had
been under this military regime from 1964 through March 1985. We
note that the Brazilian Supreme Court's Parana II and Minas
Gerais decisions were issued, respectively, in 1975 and in 1979,
during this period when Brazil was under military control.
44 As indicated above, the record does not reflect that
the Brazilian IRS ever revoked SRF 368. See supra note 32.
45 Although the Finance Minister "directed" the Central
Bank to begin "paying" this "withholding tax" by the last
business day of the month following the month in which the
Central Bank started "withholding", his action was merely in
response to the Central Bank's request, in the consulta, that it
be granted a waiver of any late payment "penalties", as only the
Finance Minister had the authority to extend the time for
"payment" and to waive such "penalties".
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