Thus, while Article 161(1) of the NTC provides, in a substantially complementary manner, that the tax rate is 1% per month, this is the statutory moratorium on interest. In this sense, even if Article 192, paragraph 3, of the Federal Constitution is repealed, the statutory interest will remain at 12% per year. The frightening interest rates charged by official institutions make credit more difficult and require parameters inaccessible to the majority of the Brazilian population and to micro and small entrepreneurs, making it impossible to meet the conditions for obtaining loans. The practical effect of a possible change in understanding is enormous. In June 2021, the date on which this text was drafted, the SELIC rate is 4.25% per year, according to the decision of the Monetary Policy Committee (COPOM) of June 16, 2021. During the period of the UNWA, the application of the percentage provided for in the NTC would result in interest charges of 12%. And it is also because of the (negative) variation of SELIC in recent times that the discussion took place between the ministers. Notwithstanding the foregoing considerations, it should be noted that the Centre for Legal Studies of the Federal Council of the Judiciary (at a civil law day held from 11 to 13 September 2002 under the scientific coordination of Minister Ruy Rosado de Aguiar, Minister of the Supreme Court) highlighted an interpretation that contradicts the use of the expression Selic in cases such as those currently under investigation. Considering that the rate provided for in Article 161(1) of the National Tax Code (i.e. 1% per month) is finally applied, “The use of the SELIC rate as an index for the calculation of statutory interest is not legally certain, as it prevents prior knowledge of interest; it is not functional, as its use is not possible when only interest rate or exchange rate adjustments are calculated; is incompatible with the state of the art. 591 of the new Civil Code, which only allows the annual capitalization of interest and may be incompatible with Article 192, paragraph 3, of the Federal Constitution if the actual interest exceeds 12% (twelve per cent) per annum.
Since the limit of the contractual moral interest follows from Articles 1 and 5 of Decree-Law 22 (626/33), a similar conclusion is drawn from the Civil Code of 2002 when Article 406 and Article 5 are interpreted in combination. Legislative Decree 22.626/33 and art. 161.1., $ of the National Tax Code. The first historical documents of commercial contracts already indicate the practice of interest. The famous Hamurabi code, for example, restricts the collection of interest on loans. Therefore, we must check what is available in Article 406 of the new Civil Code and, therefore, the new limitation of the interest rate according to the so-called “usury law”. The second, which corresponds to the agreement previously adopted by the STJ, assumes that the decree leads to the application of the SELIC rate, introduced from 1 April 1995 by Law 9.065 of 1995, also mentioned in Decrees 7.212/2010 (IPI) and 9.580/2018 (IR), as default interest for federal taxes. In this argument, we find in the Civil Code of 2002 the social function, good faith, honesty and transparency as express contractual principles (articles 421 and 422). For these reasons, the current Civil Code is far from releasing a conventional moratorium on interest, as it may appear before an inattentive first reading of its article 406. It is therefore assumed that the wording of Article 406 of the new Civil Code provides for a new limit for the loss of interest, so that it will henceforth be possible to apply default interest up to twice that of the State Treasury to collect the taxes due to it. In all cases, late payment of taxes to the Treasury is defined in Article 161 § 1 of the National Tax Code “Unless otherwise provided by law, default interest of 1% (one per cent) per month shall be charged” and Article 5 of Decree 22.
626/33 “It is permissible for default interest to be high by 1% and not more”, which is confirmed precisely in so far as the Selic rate established by the ordinary laws (Laws 9.065/95 and 9.779/99) cannot be applied to the detriment of Article 161(1). °, of the CTN, on the basis of the principle of hierarchy, since the National Tax Code was adopted by the Federal Constitution of 1988 as a substantial complementary law (Art. 34 ADCT). The exact understanding of the argument refers to the STJ`s understanding in terms of SELIC accumulation and currency correction, to the understanding that the SELIC rate includes interest and monetary corrections (see of all RESP 1136733/PR, Rel. Ministro Luiz Fux). If the conditions are not a coincidence, there would be a practical obstacle to the application of SELIC. In the rapporteur`s proposal, the interest rate on non-contractual liability should correspond to the rate of 1% (one per cent) provided for in Article 161 of the National Tax Code (CNC). Amendment No 41 proposes a fixed percentage of 18% instead of the percentage provided for in the proposed version of the product. The amendment was rejected: “In an economy like ours, characterized by instability, it is courageous to push defaults on interest rates to the old 6% per annum or the proposed 18%. Article 406 of the draft cautiously refers to a variable, simple and objectively tidy draft. Amendment 362 also proposed the adoption of a fixed percentage that is “understandable to the ordinary citizen of the people”. It was rejected in the partial opinion: “A fixed interest rate is a dangerous proposition in times of economic fluctuation.” Aline PiteresIntern of the VLF Advogados advisory and arbitration team.
(1) Law No 10.406 of 10 January 2002, www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. Retrieved 24 August 2017. 2) Article 406 of the Brazilian Civil Code: “If the moratoriums on interest are not agreed upon or are not established, or if they result from the provisions of the law, they shall be fixed at the rate applicable to the late payment of taxes to the Treasury.” Similarly, there is no question of a violation of Article 5 of the above-mentioned “Usury Law” – which deals with the impossibility of claiming interest in excess of 1% (one per cent) for an increase in contractually agreed interest – since the new law (current Civil Code) repeals the previous rule contrary to the new rule. Some studies published in the national press since the entry into force of the new Civil Code claim that the new rule on legal interest will result in the party wishing to postpone enforcement in order not to pay its creditors by paying more than the return it will earn by keeping its money in financial assets. In addition, it should be recalled that if the National Monetary Council changes the SELIC rate (used for late payment of taxes of the National Ministry of Finance), the interest rate agreed between the parties will also be changed, which means that the contract should provide that the delay will be calculated according to the percentage corresponding to twice the rate used by the National Ministry of Finance for the late payment due to it. the calculation of which will be as follows.