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Finanças Públicas e Direito Financeiro. Camila Soares da Silva. C. Soares da Silva .. A * ' +(6 V Y. READ PAPER. Download pdf. ×Close. KK* *;: //* 6T D C D 6 * * I 1 / 6 ;!!;* ' 6 * UI7/ 3 / 7 - / 6 4./ U* / % (6 N G!* 5 7) D /* 6 * & &:* * 5 7 * -/ / ' 7 /*:MG#*. READ PAPER. Download pdf. Veja grátis o arquivo curso de direito financeiro e tributário - ricardo lobo torres enviado para a disciplina de Direito Financeiro e Tributario I Categoria: Outros.
It is each member states' responsibility to directly audit its share of the government take, and this does not imply a necessary collision with anp's regulatory role. In fact, anp's and states' activities should be harmonious and complementary. Keywords: Governmet take; brazilian oil industry; oil legislation development in brazil; legal nature. With a view to attracting investments, a new legislative model was outlined to follow the economic development of the sector. From the establishment of Petrobras, by Law no.
Most of the specialized scientific literature also shares this understanding, of the non-taxable nature of the financial compensations. The legal structure of original revenues from each entity benefitted will be a crucial guideline for the possibility of direct oversight by the member-state in their revenues, as it will be developed in the next item.
This law referred to by the constitutional provision has a clear financial nature and national reach, as it establishes general rules that are equally applied to the Federal Government, states, Federal District, Cities and Territories.
I believe that the law should be supplementary, although the constitution does not mention this type of legal rule. About being more permanent, the supplementary law is a national law, where the Federal Government only offers its legislative apparatus to produce a regulatory order binding the Federal Government, states, Federal District and Cities. Now, as the constitution aimed at granting takes and compensations for a decentralized federation, which is the objective intended in the new Constitution, the definition of the terms and percentages for such take or compensation should not be the federal legislator's responsibility, as there is the risk of the other federal entities receiving a little amount.
It is obvious that any rule to govern this provision shall reach different political entities, thus revealinga national reach, as it occurs with the legal provisions for the financial compensations, set forth by Law no.
The recommended need to adopt a supplementary law, however, must be reserved only for the cases where the Constitution explicitly requires so, and it is a matter of constitutional competence rather than the application of the principle of hierarchy.
The government takes in the oil industry are, therefore, provided by the law in national character and Law no. If there are no criteria for the participation of political entities in the revenues of any governmental take, there will be clear offense to the nationalcharacter constitutionally enforced to the regulating law.
In addition, the national character as an interpretative vector denotes that the sharing criteria among the political entities must be reasonable, proportional and suitable for the effective participation of such entities in the exploration revenues. Therefore, there must be no criteria that unreasonably benefits one state to the detriment of others. On the contrary, the legal criteria must reflect the correct distribution of funds through a system that measures the exact proportion of the importance of the states in the government take revenues, through a systematic interpretation of the States and its fundamental principles Articles.
On the other hand, the Constitution establishes, as common competence of the Federal Government, the states, the Federal District and Cities "to record, monitor and inspect the concessions for the rights to research and explore water and mineral resources in their territories", as set forth in item XI of Article The member-state, being legitimately interested in these proceeds, must not be a passive spectator waiting for the regulating entity and the Federal Government to check, respectively, the accurate collection of the government take and its transfer to the federal entities, as if it was a voluntary transfer of funds.
On the contrary, this is not related to funds referred to in itemVI of Article 71 of the Constitution, but "revenues originated from the federal entity that supports the exploration". Also, as it is original revenue, the member-state holds not only the competence to inspect, but also all the acts inherent in such inspection, including the imposition of penalties and enactment of laws to set the procedures for this inspection system, 48 which will clearly have a financial law nature, as it provides a kind of financial input, thus attracting the competing legislative competence established in item I of Article 24 of the Constitution 49 and compliance with general financial law rules, pursuant to Law no.
By setting up the ANP, Law no. The duties established in Article 8 do not include the inspection of government take revenues due to member-states - and it could not include that, due to the constitutional system exposed. In this sense, the argument is that "as regards the government take provided in art. Nothing prevents the payment from being made directly to the recipient member-state, as long as it is explicitly provided by a state law, for example, pursuant to item I of Article 24 of the Constitution.
The legal concept will be adopted along this study. This article, however, is not the proper venue to develop this complex issue, and this is why we will refer to the term as a historical milestone only. Rio de Janeiro: Lumen Juris, , pages They know that, from on, the Brazilian people makes less and less use of the brain to think, unlike all the other peoples. They know that our current politicians positively think using organs other than the brain - the heel, the elbow, certain dingle dangles - rarely with the grey matter That proposal was denied by the Supreme Federal Court, by majority vote, mainly because "the difference between activity and ownership allows that the ownership of the proceeds from the extraction of oil, natural gas and other fluid hydrocarbons deposits may be attributed to third parties by the Federal Government, without any offense to the reserve of monopoly [Art.
Marcos JuruenaVillela. The Petroleum Law thoroughly addresses the concession of oil production exploration, so as to exclude the application of the Concession Law". Carlos Ari Sundfeld coord. On the other hand, the issue is controversial because, if on the one hand the principle of the supremacy of public interest governs the administrative contracts, on the other hand one may ask whether it would be possible for the State - represented by the ANP - to unilaterally change the rules that govern the contract or yet inform it, also unilaterally.
From such grounds, it is noticeable that the classification of the concession agreement under the Administrative Law category may be sensitive for the investors, as they seek some stability in their investments". Rio de Janeiro: Renovar, , p. Alexandre Santos de. Marcos JuruenaVillela Souto coord. Toshio Mukai. Regis Fernandes de. Curso de Direito Financeiro. Celso de Albuquerque.
If the Law discipline corresponding to the regulation of the economy did not have such characteristics as well, it would be bound to produce some inefficient and outdated regulation in relation to the facts and activities to be regulated". Article published on www. Consultation on The adoption of this model may generate significant impacts in the government take revenues, because, in its traditional design, the obligation the contracting company has to finance, on its own account, the development of the contracted area is compensated through a net portion of the production profit oil , after deduction of the production expenditures cost oil.
However, this discussion is still developing and the adoption of this new model finds grounded resistance, including within the ANP itself Cf. However, the financing models, as provided by Law no. Guided by this rationale, the ANP has established, since the first Bidding Round, different minimum amounts, envisaging the specific characteristics of the blocks.
It is obvious that, to those onshore blocks from mature basins, which may interest only small-sized companies, the minimum amount is attributed is smaller than, for example, the deep-water offshore blocks, which may only be operated by companies with experience in that limited technology that is, companies with 'wide shooting range', capable of investing about 20 million or more in an exploratory well with risk of failure ".
Therefore, they are not voluntary transfer funds by the Federal Government, and should be shared among the states, the Federal District and Cities. In his opinion, Justice Gilmar Mendes even affirms, "it is a subjective right of the federal entity.
It is an original revenue placed directly on the State's trust by the Constitution. It is the Law's duty to discipline this procedure There is no doubt, including for the legislator, that it is not a voluntary transfer Accessed in July Rio de Janeiro: Esplanada, , p.
Therefore, it is not an amount paid for the rent of a Federal Government capital asset, which could theoretically swerve the participation of the other entities. The mechanisms introduced by the law allowed the State to collect a qualitative higher portion of funds generated from the petroleum and ensured the distribution of such funds to a high number of Federal Entities".
Sua manifesta inconstitucionalidade. Ricardo Lobo.
Marcos Juruena Villela Souto coord. If it is so as mere adhesion in terms of public services contracts, whose return is not even established between the parties, but by Management administrative entities or regulatory agencies through the so-called regulating clauses, what to say about the concession agreement, in which first there is the open bidding and then the right to demand the adjudication of the contract?
Rio de Janeiro: Forense, , pages Rio de Janeiro: Renovar, 2nd ed. Rio de Janeiro: Renovar, 12th ed. Rio de Janeiro: Renovar, Rio de Janeiro: Freitas Bastos, Rio de Janeiro: Esplanada, Baixar Arquivos de Scribd.
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