1ª fase do Exame OAB 47 | Começando os Estudos de Direito Tributário, Ética e Estatuto

The angel's voice whispered in my ear.

I have no doubt, I can already hear your

signs

that you would come on a Sunday afternoon.

I'll announce you at the doors of the regional offices.

You're coming,

you're coming. Approval is coming. I can already hear

your signals.

I want to know where the most successful

candidates in the bar exam are, because we

want to, we can, and we will pass

the bar exam. Amen. We

will seek this approval. So, I'll be

working with you. I'm going to make a bunch

of diagrams like this, pulling, pulling,

pulling, so we can work through the topics that are

most frequently tested, because they

come up on tests. Every test I say will be on the test,

and the students don't take me seriously. I'm going to

draw, I'm going to draw, I'm going to

draw. Oh, I'm going to map it out now. I

will map out the principle of legality,

which is the foundation of

tax law. You need to remember that the

rule of legality is that taxes

are established through law. They are

established by ordinary law. And

where an ordinary law is applicable, so is

a provisional measure, because a

provisional measure is fungible,

validly replaceable with an ordinary law.

Furthermore, it is converted into an

ordinary law within a period of 60 plus 60 years. But

in tax law, we have seven matters

reserved for the enactment of supplementary legislation.

And this is where I'll start mapping out the

general rules. All general rules in

tax law, concepts, and explanations

in tax law, article 146, paragraph 3 of the

Constitution, are made by means of a

supplementary law. The compulsory loan,

which is one of the five types of

taxes, is a type of tax

that, if created, will be created

through a supplementary law. The IGF, the

tax on large fortunes, if

created by the Federal Government,

will also be created through a

supplementary law. We have the power to exercise

residual tax jurisdiction to

create new residual taxes.

not yet foreseen in the Constitution, 1541

of the Constitution, new contributions for the

financing of social security,

residual contributions, 195, paragraph

quo of the Constitution. And then comes the

tax reform, the IBS tax on goods and

services, the CBS contribution on goods and

services, and the selective tax 153,

item o of the Constitution, CBS 195,

item 5 and BS16A

of the Constitution. So, in order for me to

begin mapping out these seven areas of

supplementary law, there are no provisional measures

. In these seven areas of

supplementary law, provisional measures are absolutely not permitted

. A provisional measure

cannot, under any circumstances, legislate on

matters that should be addressed by a supplementary law. Very good.

Regarding the general guidelines for us to begin

mapping. Regarding the general rules, blue. I

'll play it on the other screen. All

general rules, all concepts in

tax law, the concepts in

tax law,

the explanations in tax law, the

regulations to define, regulate,

explain, interpret, are

made by means of complementary law. And it is

for this reason, for this reason, that the

National Tax Code, which dates from '66

and was published back in '66 with the

status of ordinary law, but when

the 1988 Constitution came into effect, the new

original constituent power in '88, did the National Tax Code

need to be adopted or not? And the National Tax Code (

CTN) was adopted, it was adopted

by the 1988 Constitution, but it ceased to

have the status of ordinary law and was

adopted as a complementary law.

Why? Because the purpose of the National Tax Code (CTN) is not to

create any taxes. The purpose of the CTN (Brazilian Tax Code) is to

explain, define, and regulate all

institutions in tax law. The text discusses tax

law concepts and their implications. It explains that the

concept of a taxable event is defined as a

tax liability, an assessment, and a tax credit. It then poses the question: "What is the concept of a tax incidence hypothesis? What is the concept

of a generating event? What is a tax obligation? What is an assessment? What is a tax credit? If you want to know these concepts in

tax law, just look at the Brazilian Tax Code (CTN). This is even written in the first article

of the CTN, which states that it is the

CTN's responsibility to establish the general rules applied to tax law.

All general rules are

made through complementary law. This will be

on the exam. It will be

there. For example, the

Union enacted an ordinary law

in the National Congress to change the statute

of limitations from

5 years to 8 years. Can the Union approve

an ordinary law in the National Congress

to change the statute of limitations from 5

years to 8 years?

Yes or no? Yes or no? So? Yes or

no? Yes or no? No. Why? Well,

the Union has the power to amend

the CTN, but it cannot amend the CTN through complementary law."

Ordinary law, because to

change the statute of limitations from 5 to

8 years, you need to amend the National Tax Code (

CTN), specifically article 174. And

to amend the CTN, you don't amend it

through ordinary law; you can only amend the

CTN through another national complementary law

approved by the National Congress,

because the CTN was received with the

status of a complementary law. Therefore, only

a national complementary law can

amend the CTN, never through

ordinary law. Never. And then, very well, we

have other general rules that are very

important. For example,

Complementary Law 87 of 1996 is the rule that deals with

the general rules of CMS

throughout Brazil. We have Complementary Law

116 of 2003, which deals with the

general rules applied to ISS. We have

Complementary Law 214 of 2025, which deals with

the general rules

applied to IBS, CBS, and the

selective tax. And all general rules in

tax law are made through...

Complementary law. And just one detail: the fact that the

Union has created general rules to

explain what ICMS (Tax on Circulation of Goods and Services) is

throughout Brazil does not prevent the state of

Bahia, the state of Santa Catarina,

or the state of Mato Grosso do Sul from creating

another state complementary law to

establish another general rule for their ICMS,

as long as it does not conflict with the

Union's general rules. The fact that the Union created

Complementary Law 116 to outline the

general rules for ISS (Tax on Services) throughout Brazil does

not prevent each of the millions of

municipalities from creating other

complementary laws in their city councils

to stipulate other

general rules, as long as it does not conflict with the

Union. All federative entities can

create general rules, and if they do, they will do so

through a

complementary law. Period. We also have

compulsory loans as a matter for complementary law. General rules and

compulsory loans are matters for

complementary law. And I will even

separate them because FGV (Getúlio Vargas Foundation) loves this.

We have compulsory loans,

and

something quite different is the

extraordinary war tax. One thing is the

loan. Compulsory tax is one thing, and another is the

extraordinary war tax.

Compulsory loan foreseen in article 148

of the Constitution, add article 15 of the

CTN (National Tax Code) and you take

Supreme Court ruling 418 and cross it out. Ruling 418 is

no longer applicable; it

predates the Constitution.

Before 1988, in fact,

compulsory loan was not a tax, but it

became one with the 1988 Constitution.

So it is no longer applicable.

I will ask who has the competence

to institute and collect

compulsory loans. Only the Union and no one else.

If the Union wants to institute and collect

compulsory loans, how does it create them?

Through a complementary law,

compulsory loan. Compulsory loan is

one of the seven matters of

complementary law. It is one of the seven matters of

complementary law. Therefore, there is

no provisional measure. A provisional measure

cannot, under any circumstances, legislate on

matters of law. Complementary.

No hypothesis whatsoever. OK. Very well.

Regarding the triggering event for the

compulsory loan, we can have a

compulsory loan for

war or imminent war.

Compulsory loan for war or

imminent war,

duly decreed public calamity, or investment or

public investment of relevant national interest.

If it was a compulsory loan for war,

imminent war, or calamity, it is an exception to the

annual and ninety-day prior notice rule and

may produce immediate effects.

It can produce

immediate effect. If you want to wait, you can

also wait. If you want to wait 30 days, 90

days, 1 year, 10 years, you can also wait, but

you can collect immediately. And the

compulsory loan for

public investment of relevant national interest

will be subject to the annual and ninety-day prior notice rule

. It

will wait until January 1st and 90

days. And the furthest date, the

furthest date will be the answer to the

question. The furthest date will be the

answer to the question. Okay, so one day we

'll have the end, the end of the

generating event. With the end of the generating event

of the compulsory loan, the Union will

have a maximum period

of 5 years

to return everything that was collected

from the compulsory loan. The

compulsory loan has a clause for

full restitution. It needs to be

returned in full, corrected and

updated monetarily within 5 years in the

current account, at least at the time of the

exam, right? At least at the time of the exam

this will work, okay? So, return

everything in 5 years. When we go to the

extraordinary war tax, the

extraordinary tax is provided for

in article 1542

of the Constitution, combined with article 76 of the CTN (National Tax Code). The

extraordinary war tax

will be a tax,

a tax under the exclusive jurisdiction of the

Union, whether it's the compulsory loan or

the war tax, both are under the

exclusive jurisdiction of the Union. But the

compulsory loan is created by

complementary law, there is no provisional measure

. And the extraordinary

war tax... It is created by ordinary law,

so a provisional measure is applicable. That is the

main difference between the two.

Compulsory loan by

complementary law, provisional measure, there is none.

War tax, ordinary law. So,

a provisional measure is applicable. Here comes the question: What

will be the triggering event? The triggering event for the

war tax. Will it be war

or the imminence of war? Yes, if

we are at war or on the verge of

war, we will be dying from paying

compulsory loans on the war and the

extraordinary war tax will die from

paying both, especially since the

compulsory loan does not generate revenue with the

war tax. And since it is war, it will be an exception to the

annual and ninety-day prior notice requirements. It may

produce immediate effects.

It may produce immediate effects. With

the end of the triggering event

of the extraordinary war tax, the

Union will have a

maximum period of 5

years to suppress. Read:

suppress, gradually reduce

the collection of the extraordinary tax. 5

years to... To collect. So, here are

the main differences between a

compulsory loan and an

extraordinary war tax. A

compulsory loan can only be collected by complementary law,

not by provisional measure. A

compulsory loan has three triggering events, and

upon the termination of each triggering event,

everything must be repaid within 5 years. The

extraordinary war tax

is created by ordinary law, a

provisional measure is possible, it only has one

triggering event, and upon the termination of that event, it is

gradually reduced over 5

years. 5 years. To stop collecting a

compulsory loan, there is no complementary law or

provisional measure. A war tax is created by

ordinary law, a provisional measure is possible. A

compulsory loan requires full repayment within 5

years. The war tax gradually decreases

over 5 years. It's a

test question, a test question, a test question. And

that's where we can see the difference between

them. The IGF (Tax on Large Fortunes) doesn't exist yet, right?

If you want to create it, you can. Only the

Union can create it, and it can be created by law. Complementary

provisional measure. There isn't one, but it hasn't

been created yet. We also have

residual tax jurisdiction, which

serves to create new

residual taxes not yet foreseen in the

Constitution, and new contributions for

financing social security.

So, I'm also going to map out

jurisdiction.

Tax jurisdiction. Residual tax jurisdiction

. If you think there are already

too many taxes, it's better if we stay

quiet because it could get worse.

Residual tax jurisdiction serves to

create new taxes, new taxes

not yet foreseen in the Constitution, and

new contributions for financing

social security, new taxes in article

154, paragraph one, of the Constitution, and

new contributions for financing

social security in article 195,

paragraph four of the Constitution. OK.

Very well. And then came the question.

Who has the power to create, read the

article. Read it. I need you to read the

article. Who has the power to

institute new residual taxes beyond

those foreseen in the Constitution? Only the Union.

Only the Union can create new

residual taxes, and nobody else. And

nobody else. OK. If it creates them, it's done according to the

principle of legality, through a

complementary law. So, a provisional measure is

not... Yes. He spoke of residual taxation, the

Union, and complementary law.

Residual taxation, the Union, and complementary law.

Therefore, there is no provisional measure. The

residual tax will be subject to

annual and ninety-day prior notice rules. You

have to wait until January 1st and 90

days. And the furthest date, the

furthest date will be the date of the

issue. Remembering that the new

residual taxes, if created,

need to be non-cumulative, like

ICMS, BS, CBS. We will have to

compensate at each stage of the

consumption chain what has already been paid with what is still

to be paid. What has already been paid with what is

still to be paid, we will

compensate, reduce, and pass on,

reflect, embed in the price of the product.

And most importantly, these new

residual taxes cannot have the

same taxable event and tax base as

another existing tax or

fee, under penalty of fraud. Fraud,

as a rule, is prohibited in our

legal system. I cannot have

two taxes, I cannot have two

fees, and I cannot have the same tax. With

a tax rate with an

identical taxable event or tax base, exactly the same, exactly the

same, under penalty of

double taxation. I cannot have two taxes,

I cannot have two rates, and I

cannot have a tax rate with an

identical taxable event or tax base under

penalty of double taxation. For example, you cannot

create a new residual tax, having

as its taxable event the revenue of

companies, which will generate double taxation with

income tax. I cannot create a new

residual tax, having as its taxable event the

circulation of goods, because it will

generate double taxation with ICMS (State VAT), but

a new residual tax can be created. The

Union, through a complementary law, can

create a new residual tax on

non-motorized two-wheeled vehicles,

because IPVA (Vehicle Property Tax) does not apply to

non-motorized two-wheeled vehicles. Scooters,

roller skates, bicycles. It's better for us to

stay quiet so as not to give ideas to the

National Congress, right? But it could happen, we don't

have any cases in Brazil, but it

could.

And in

addition to

residual taxes, we can create

new contributions. New

residual social security contributions.

Who has the competence to

create them? New contributions to social

security. Only the Union and no one else.

If the Union wants to create new

contributions to social security, as it does

through a complementary law, then there is

no provisional measure. Professor, I

disagree. Why? Because you

told me to read the code, I opened

paragraph four here and it says "the law

will establish new sources of funding

for social security." And "the law"

is an ordinary law, true, but false.

Cross out that expression "the law." The Supreme

Federal Court itself has already ruled that it must be through a

complementary law, because

paragraph four itself refers to article 1541.

And every time it talks about

residual taxes, Union, complementary law, Union, complementary

law, Union,

complementary law, and that's it.

Remembering that

residual social security contributions,

with regard

to the principle of annual prior notice and

ninety-day prior notice, do not wait until

January 1st, but can only be collected

after 90 days. So here we have a

difference. Residual taxes are subject to the

rule of annual prior notice and non-annual prior notice.

The earliest date will be the

answer to the question. But if it's a social

security contribution, you only wait

90 days. Social security contributions

only wait 90 days. Only wait 90 days.

Okay, everyone? Proof, proof, proof,

proof. And then come the social

security contributions, they will also be non-

cumulative. Social

security contributions will also be non-cumulative

if they are created and, therefore, need to

be offset. We will offset,

we will deduct, we will reduce the

debits with the credits, the debits with

the credits, the debits with the credits,

and we will pass it on in the price of the product.

We will pass it on in the price of the product, OK?

And then the final consumer, poor thing,

will bear the entire

tax burden in the price of the product. And if

a new residual contribution is created,

it cannot have a generating event or

calculation basis identical to that of another social

security contribution, under penalty

of business. Bismiden is, I cannot

have two taxes, I cannot have two

fees, I cannot I can have a tax with a

levy and not a social

security contribution with another social

security contribution under penalty of bizidem.

A loan does not generate bizidem with a tax. A

contribution does not generate bizidem with a tax.

I cannot have two taxes. I

cannot have two levies. I can have a

tax with a levy and no contribution

with another contribution under penalty of

bizidem. That's why I can have a

compulsory loan on war and

I can have an extraordinary

war tax and nothing happens, because the

loan does not generate bizidem. The

loan does not generate bizidem with a

tax, okay? Professor. Is there any

possibility of a tax on war? Yes.

Yes, except, except, except the

extraordinary war tax. And now with the

tax reform, the selective tax.

The extraordinary war tax and the

selective tax are two

constitutionally permitted exceptions to

bizidem. Constitutionally permitted

and may have a generating event

or tax base identical to that of

any other tax, because it is an

exception.

It is an exception that has not yet appeared on a

test. So, I'm even going to highlight this

here. The only The

constitutionally permitted exception

to the Bisingen tax is the extraordinary

war tax and the selective tax, which may

have the same taxable event or tax base

as any other tax.

But only in this case, only in this case, proof, proof

, proof, proof, proof, proof. OK,

everyone? Right? So, we're closing here.

We're coming to the complementary law matters

, right? General rule,

compulsory loan, IGF, residual. And

now we're going to map, let me see

here, the IBS, IBS, CBS and the

selective tax. IBS, CBS and the selective tax.

So you can visualize where the

complementary law matter is within the

three taxes foreseen with the

tax reform. I'll even make a

drawing, okay? We have here our VAT,

our dual VAT, our VAT bifurcated

into two legs. VAT is a

value-added tax that will be subdivided into

CBS, contribution on goods and services, and the

IBS, tax on goods and services. And

in a third aspect, we will

also have the selective tax created by the

tax reform, okay? OK. Very good.

The CBS CBS is a contribution under the

exclusive jurisdiction of the Union. It is a

contribution under the exclusive jurisdiction of the

Union. Only the Union can create CBS and no

one else. Only the Union can create CBS and no

one else. And IBS is a tax under

shared jurisdiction

between states, the Federal District, and

municipalities. But we have Article

149B

of the Constitution, which, in

simpler terms, states that IBS and CBS

will be identical taxes. Exactly the same,

exactly the same, exactly the same. IBS and CBS will be

identical taxes with the same

taxable event, the same generating event,

the same obligations, the same

taxpayers, the same immunities, the

same differentiated regimes, the same

rules of non-cumulativeness and

utilization. They are identical taxes,

except for the jurisdiction, which is that one belongs to the Union and

the IBS to the state, the Federal District, or the municipality,

except for the jurisdiction. They are

identical taxes, exactly the same, exactly the same, exactly the

same. For this reason, I say that

they are twins from different placentas,

OK? But for this reason, because they are

identical taxes, that is why CBS The IBS

and the IBS will be created by

a single national complementary law

. Specifically,

Complementary Law 214 of 2025, a single

national complementary law, will

simultaneously create the IBS,

the CBS, and the selective tax, generating

uniform legislation

throughout the national territory. So, the

creation happens through

Complementary Law 214.

This complementary law was published

on January 16, 2025. And the IBS, the

CBS, and the selective tax are governed by

the principles of annual and

ninety-day prior notice. Wait January 1st and

90 days. Here it will be January 1st,

2026. Here it will be April 17, 2025. Which

is the furthest date?

January 1st, 2026. It's the furthest date

that will give you more time to pay the

tax and pay a new

tax burden. So, considering the annual prior notice

, considering the ninety-day prior notice, the furthest date

will be the answer to the question. OK?

Very good. However, although the IBS and

CBS are created through

national complementary law, and are

part of seven matters of complementary law,

despite being created by

national complementary law, the

rates, and only the

rates, of the CBS will be fixed by

ordinary

national law approved in Congress and will

average 10% for CBS. It is created

by complementary law, but the

rates will be fixed by

ordinary national law.

And with regard to the IBS and CBS, the

rates, and only the rates of the IBS, will be

the sum of the rate established

in ordinary state law

with the rate established in

ordinary municipal law of the state and the

municipality of destination. This is the first

major change of the

tax reform. Today, ICMS is taxed

with the rate of the state of origin and ISS

with the rate of the municipality of origin.

With the tax reform, this will no longer be the case. Take

the ICMS, add it to the ISS, and eliminate the... ICMS, ISS,

and IBS, tax on goods and

services. And we will start taxing

with the rate of the destination state and municipality

. We will put here, see, the

rate of the destination state. For

example, 12% in the state, 6% in the

municipality, giving a total of 18% BS,

adding the CBS 10, an average of 28%

BS CBS.

The rate will be the sum of the

rate established in ordinary

state law with the rate established in

ordinary municipal law of the destination state and

municipality, the principle of

destination taxation. So, although

they are created by

complementary law, the rates, and only the

rates, are made through

ordinary law. Remembering that the DF, my DF

is a strange thing, right? It has

competence In a cumulative sense, it combines the

powers of both states and

municipalities. So, the Federal District will establish the

state tax rates and the municipal tax rates

. And so the Constitution

continues.

If the state, the Federal District, and the municipality

fail to establish their

tax rates, we will use the

reference rates, the

reference rates of the Federal Senate, but without

charging the IBS (Integrated Sales Tax). Rest assured, it won't

stay that way. If they don't specify the

rates, we will use the

reference rates from the

Federal Senate. Proof, proof, proof. And then we

have the triggering event, the triggering event for the

IBS, for the CBS. The IBS and CBS will apply

to goods, tangible goods,

tangible assets,

and intangible assets. So, for example,

any transaction, right?

Especially if you sell a car, sell

a house, sell merchandise, you'll pay

IBS (tax on goods and services), tangible goods. But since you've now

transferred a trademark licensing agreement

, you've sold

software, an intangible asset, and you'll

also pay IBS (Brazilian tax on goods and services). IBSCBS covers tangible and intangible assets, including

trademark rights, image rights, software, and other

services. The concept of service in the law,

by the way, is funny. He says: "Everything that

is not considered a good will be

considered a service. It's a tax on

everything." And in imports, right? Whoever

imported [the money] got screwed. It was imported, and it was a

disaster. If you imported it, you're screwed, you'll

pay. And the IBS and CBS,

they will adopt the principle of

fiscal neutrality. The principle of

fiscal neutrality, which is the second

major change introduced by the

tax reform. ICMS, for example,

is selective. IMS is selective.

The rates will vary according to the

essential nature of the product. The more

essential it is, the lower the tax rate. The

less essential it is, the higher the CMS tax rate

. I can have a huge variation in CMS

within the same state, but

with the reform that's no longer the case, because the IBS

and CBS don't adopt selectivity, they adopt

neutrality. The

PS and CBS tax rates will be the same

for all goods, services, and

rights. But this one is more

essential. All goods, services and

rights. 28%.

Okay, 28%

for all goods, services and rights,

except for the exceptions expressly stated in the

Constitution, with reductions of 100%, 60% and

30%. Except for what is already in the

Constitution. The State, for example,

cannot simply exempt the

IBS (Brazilian VAT) by reducing the IBS rate, which

adheres to the principle of

fiscal neutrality. So, to wrap up our

overview, it's

worth remembering that the CBS, being a

federal tax, will be

administered and managed by the Federal Revenue Service

. The Brazilian Federal Revenue Service itself

will manage the CBS. And the

IBS will be managed and administered

by the management committee, which will be an

entity with financial and

budgetary independence, in order to manage

the IBS throughout Brazil for the 27

states and more than 5,500 municipalities.

Remember that this management committee will

have a president who

must be a person with a well-known, impeccable

reputation and recognized

expertise in tax law and

tax administration. It's no

use knowing criminal law, it's no use knowing

civil law, because it's primarily a

fiscal body. the renowned expertise in

Tax Law, 27 representatives from the

states and the Federal District, 27 representatives from the

municipalities and the Federal District. Of these 27

municipalities, 14 were elected by equal vote within each

municipality and 13 by a weighted vote based on the

municipality's population, according to the management committee. And

then we have the selective tax.

The selective tax is a tax under the

jurisdiction of the Union. It will be created,

or has already been created, by

complementary law, specifically Law 214 of 2025.

Although it is created by

complementary law, the tax rates, following the same

logic, are

set by ordinary national law, and

can be a

percentage-based rate (1%, 2%), or a

specific rate based on the unit of measurement

adopted (kilogram, liter, milliliter,

centimum, etc.). Keep in mind that the

selective tax will have a

single-phase incidence. Unlike the IBS, which is levied

multiple times throughout the consumption chain. The

selective tax has a

single-phase incidence.

It only occurred once in the

supply chain at the beginning. He finished. He finished.

He finished. Remember that we have three

selective tax exemptions.

Selective taxation is applied to exports because

those who export are doing very well, thank you very much. There is

no selective tax levied

on electricity. We have immunity for

exports, electricity, and

communication services; immunity for

exporting electricity and

communication services. It's worth remembering that

selective taxation is a possibility, a

constitutionally

permitted possibility of double taxation. We even

talked about this here, look. It can have been a bit

rough in two situations, right? The

extraordinary war tax and the

selective tax are the two

permitted exceptions to the Bisingen tax. And

what will be the triggering event for the

selective tax? Well, the taxable event for the

selective tax is that it applies

to production,

producing, marketing,

importing, and

extracting, including at a

maximum rate of 1%. The Constitution establishes a

maximum tax rate of 1% on the

extraction, regardless of

destination, of

goods and services

harmful to health and the environment, as expressly

provided for

in Complementary Law 214 of 2029, such as

automobiles, aircraft, vessels,

tobacco products, alcoholic beverages,

sugary drinks, Coca-Cola, soft drinks,

minerals,

sports, fantasy and

prediction contests, which are games. These are goods and

services that are harmful to health and the

environment and are listed in the

exhaustive list of Complementary Law 214 of

2025. So, drawing from the seven subjects

of complementary law, we mapped

them all. It's important to remember that the

supplementary law in the IBS, CBS, and

selective tax matters here refers to the

creation of the IBS, the CBS, and the

selective tax, because the rates for all three

are specifically set by

ordinary law. So, we mapped out all the

supplementary law matters. All

matters governed by supplementary law, and where

supplementary law is applicable, provisional measures are not

permitted. Count on us, the Gran team.

We are here at your disposal to

build together, hand in hand, your

approval, because you are coming,

I already hear your signals.

Kisses.