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Our professionals

PARTNER

Renata Correia Cubas

Renata Correia Cubas
55 11 3147 7777 rcorreia@mattosfilho.com.br São Paulo – Paulista
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Areas of expertise

Experience

With 30 years’ experience in tax and international trade matters, Renata provides legal advice and assists with pre-litigation and strategic litigation related to operational taxes for goods and services. She also advises on import and export planning in various sectors, particularly TMT, retail, agribusiness, infrastructure and energy, food and beverage, and healthcare.

Education

Bachelor of Laws – Pontifícia Universidade Católica de São Paulo (PUC-SP);

Master of Laws in Comparative Civil Law – Pontifícia Universidade Católica de São Paulo (PUC-SP);

Doctor of Laws in Economic Law – Pontifícia Universidade Católica de São Paulo (PUC-SP);

Distinguished Professor (livre-docente) – Pontifícia Universidade Católica de São Paulo (PUC-SP).

Recognitions

Análise Advocacia – Tax (2017 – 2021), Health (2021), International Trade (2016), Chemical and Petrochemical (2020), São Paulo (2016 – 2017, 2021);

Chambers Global – Tax: Litigation (2015 – 2020);

Chambers Brazil (formerly Chambers Latin America) – Tax: Litigation (2011 – 2020);

International Tax Review – Tax Controversy (2016 – 2022), Indirect Tax (2016 – 2022), Women in Tax Leaders (2016 – 2022) and Americas Indirect Tax Practice Leader of the Year (2017 – 2018);

LACCA Approved – Tax (2017 – 2022);

Latin Lawyer 250 – Tax (2021);

The Legal 500 – Tax (2014);

Who’s Who Legal Brazil – Corporate Tax – Controversy (2018 – 2021);

Who’s Who Legal Global – Corporate Tax (2018) and Corporate Tax – Controversy (2019 – 2021);

The Legal 500 – Tax (2014);

Who’s Who Legal Brazil – Corporate Tax – Controversy (2018 – 2021);

Who’s Who Legal Global – Corporate Tax (2018); Corporate Tax – Controversy (2019 – 2021).

Único. The Mattos Filho news portal

Authored publications

Mattos Filho in the media

With Renata Correia Cubas

Brazilian Supreme Court’s new ruling regarding the ISS on franchise agreements

During virtual court sessions held between May 22 and 28, 2020, the Brazilian Supreme Court (“STF”) decided that the levy of the Brazilian Tax on Services (“ISS”) on franchise agreements is constitutional. The case under analysis (Extraordinary Appeal No. 603,136) discussed the collection of ISS on a franchise agreement of a food supply franchise. 

In summary, the discussion on the levy of ISS focuses on the fact that Brazilian franchise laws, both the old (Law No. 8,955/1994) and the new (Law No. 13,966/2019), establish that the franchise system is one in which a franchisor authorizes a franchisee to use its trademark and other intellectual property rights, associated with the right to produce or provide products or services, as well as the right to use methods and systems for implementation and management of its business. In other words, the franchise agreement has a hybrid legal nature involving the “legal obligations ‘to give/deliver’ something and ‘to do’ something”. 

Historically, the STF had recognized “the provision of services” as the element for the levy of ISS referred to as a “legal obligation ‘to do’ something”, as verified in several rulings and in the STF’s Binding Precedent 31,  which rules that the levy of ISS on lease agreement transactions[1] is unconstitutional since it refers to a “legal obligation ‘to give/deliver’ something and not ‘to do’ something”.

However, with the present ruling, the STF changed its historical understanding and determined with the effect of general application that “The levy of ISS on franchise agreements (items 10.04 and 17.08 of the service list attached to Supplementary Law No. 116/2003) is constitutional.”

It should be noted that STF Justice Gilmar Mendes, in his winning vote, clarified that the Binding Precedent 31 shall not be applied in transactions of a hybrid legal nature.

Given the impact of this decision, the representatives of industry have informed that a Motion for Clarification will be filed requesting the modulation of the effects of the decision, in order for it to be applied prospectively only.

Our team will continue to follow the updates on the case and is at your disposal for any clarification. For more information on this subject, please contact our Intellectual Property and Tax practices.

[1] As recalled in the vote of Justice Celso de Mello and Justice Marco Aurelio, who diverged from the majority. 

Areas of expertise

State of São Paulo regulates the recognition of ICMS tax credits in the context of the Tax War

The State Attorney’s Office of São Paulo (“PGE”) and the Secretariat of Finance and Planning (“SFP”) published, on May 8th, the Joint Resolution 01/2019, which regulates the procedures, to be adopted by the taxpayer, for the recognition of ICMS tax credits derived from transactions with tax benefits without CONFAZ’s approval. 

The Resolution’s purpose is to regulate Article 1 of Supplementary Law No. 160/17 (“LC 160/17”) and Clause Eight of the ICMS Agreement No. 190/17, which deal with the remission of ICMS tax credits in the context of the Tax War.

According to the Resolution, taxpayers may file applications requesting the recognition of ICMS tax credits subject to tax assessments pending of judgment or already closed with unfavorable decision in the administrative level.
Said request must be filled out in accordance with the Resolution’s “Exhibit R”, which will be (i) presented directly on the records of the administrative proceeding in progress or submitted to (ii) the Directorate of Collection and Debt Recovery, regarding closed cases that are awaiting enrollment in executable tax debt; or (iii) the accountable unit of PGE, if it is already enrolled.
The request, in turn, will be analyzed by the Regional Tax Offices, the State´s Tax Court, Assistance Directorate, or by the PGE, depending on the case’s status.
According to the Resolution, the approval of the request is subject to compliance with the requirements provided for by both LC 160/17 and ICMS Agreement No. 190/17, including publication of the tax benefit in the Official Gazette of the State that granted it, as well as its registration and deposit.

In addition, in the request, the taxpayers have to expressly waive and withdraw themselves from any legal administrative or judicial defense or appeal concerning the ICMS tax credits. As stated in the Resolution, the waiver, however, will only take effect with the recognition, by the state tax authorities, of the required ICMS tax credits. If the request is denied, the judgment of the administrative or judicial proceeding will continue, as well as the procedure for enrollment in the tax debt.

While state tax authorities do not issue a final decision regarding the recognition of the requested ICMS tax credits, the course of the correspondent administrative and judicial proceedings will be suspended.

Areas of expertise

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