LEI NO. 11,033, OF December 21, 2004

Changes the taxation of the financial and capital market; institutes the Tax Regime for Incentive to Modernization and to the Magnification of the Port Structure? REPORTO; alters the Laws in the 10,865, of April 30, 2004, 8,850, of January 28, 1994, 8,383, of December 30, 1991, 10,522, July 19, 2002, 9,430, December 27, 1996; and 10,925, of July 23, 2004; and gives others providences.

THE PRESIDENT OF THE REPUBLIC I do know that the National Congress decrees and I sanction the following Law:

Art. 1º The incomes of which it treats art. 5º of Law No. 9,779 of January 19, 1999 regarding applications and operations carried out as of 1º January 2005, subject to the incidence of income tax at source, to the following aliquots:

I-22.5% (twenty-two whole and five tenths per cent), in applications with a term of up to 180 (one hundred and eighty) days;

II-20% (twenty percent), in applications with a term of 181 (one hundred and eighty and one) days up to 360 (three hundred and sixty) days;

III-17.5% (seventeen whole and five tenths per cent), in applications with a maturity of 361 (three hundred and sixty-one) days up to 720 (seven hundred and twenty) days;

IV-15% (fifteen percent), in applications with a maturity of above 720 (seven hundred and twenty) days.

§ 1º In the case of existing applications on December 31, 2004:

I-the yields produced up to that date will be taxed under the then-beholdant legislation;

II-in relation to the yields produced in 2005, the deadlines referred to the incisos I to IV of the caput of this article will be counted from:

a) of July 2004, in the case of application effected until the date of the publication of this Act; and

b) of the date of application, in the case of application effected after the date of the publication of this Law.

§ 2º In the case of the investment funds, the following will be observed:

I-the income will be taxed semester, based on art. 3º of Law No. 10,892 of July 13, 2004, to the aliquot of 15% (fifteen percent), without prejudice to the provisions of inciso III of this paragraph;

II-in the hypothesis of funds of investments with grace period of up to 90 (ninety) days for quota ransom with income, the incidence of income tax at the source referred to in the inciso I of this paragraph will occur on the date on which to complete each grace period for rescue of quotas with income, without prejudice of the provisions of the inciso III of this paragraph;

III-on the occasion of the rescue of the quotas, it shall be applied complementary aliquot according to the schedule in the incisos I to IV of the caput of this article.

§ 3º The provisions of this article do not apply:

I-to the funds and investment clubs in stocks whose income will be taxed exclusively in the ransom of quotas, to the aliquot of 15% (fifteen per cent);

II-to the capitalization bonds, in the case of rescue without an occurrence of draw, whose yields will be taxed to the aliquot of 20% (twenty percent).

§ 4º To the fund or investment club in shares whose portfolio leaves from observing the ratio referred to in the art. 2º of the Provisional Measure No. 2.189-49 of August 23, 2001, the provisions of the caput and in § § 1º and 2º of this article shall apply, from the time of the unsquaring of the portfolio, save in the case that, cumulatively, the said proportion shall not surpass the limit of 50% (fifty percent) of the total portfolio, the situation is regularized within the maximum term of 30 (thirty) days and the fund or club not incurring the new assumption of unsquaring in the period of 12 (twelve) subsequent months.

§ 5º Considerate included among the income referred to by art. 5º of Law No. 9,779 of January 19, 1999, predetermined obtained in conjugated operations, carried out in the markets of purchase and sales options on stock, commodity and futures (box) exchanges, on the market to term on the stock exchanges, of goods and futures, in covered sales and without daily adjustments, and on the over-the-counter market.

§ 6º The operations described in § 5º of this article, carried out by fund or investment club in shares, do not will integrate the share of the applied portfolio into shares, for effect of the proportion referred to in Paragraph 4º of this article.

§ 7º The Minister of Finance will be able to raise and re-establish the percentage to which the art is referred. 2º of the Provisional Measure No. 2.189-49, of August 23, 2001.

Art. 2º The provisions of the art. 1st of this Law does not apply to net gains earned in operations carried out on stock, commodity, futures, and assesment exchanges, inclusive day trade, which remain subject to the current legislation and will be taxed at the following aliquots:

I-20% (twenty percent), in the case of operation day trade;

II-15% (fifteen percent), in the remaining hypotheses.

§ 1º The operations to which it refers the caput of this article, except day trade, subjects themselves to the incidence of the income tax at source, to the aliquot of 0.005% (five thousandths per cent) on the following values:

I-in the future markets, the algebraic sum of the daily adjustments, if positive, ascertained on the occasion of the closure of the position, in advance or at their maturity;

II-in the options markets, the result, if positive, of the algebraic sum of the premiums paid and received on the same day;

III-in the fixed-term contracts:

a) when there is the prediction of delivery of the active object on the date of its maturity, the difference, if positive, between the term price and the price to the view on the date of settlement;

b) with exclusively financial settlement, the value of the financial settlement provided for in the contract;

IV-in the spot markets, the value of the divestance, in the operations with shares, financial active gold, and other securities traded on them.

§ 2º The provisions of § 1º of this article:

I-does not apply to the option-exercise operations;

II-applies to the operations carried out on the counter market, with intermediation, having per object the securities and assets referred to in the inciso IV of § 1º of this article, as well as to the operations carried out in markets of future settlement out of scholarship.

§ 3º The day trade operations remain taxed, at the source, pursuant to the current legislation.

§ 4º It is waived the withholding tax that it treats o § 1º of this article whose value is equal to or less than R$ 1.00 (a real one).

§ 5º Ocurring more than one operation in the same month, carried out by a same person, physical or legal, shall be effected the sum of the values of incident tax on all the transactions carried out in the month, for the purpose of calculating the retention limit set out in Paragraph 4º of this article.

§ 6º It is responsible for withholding tax from which they treat § 1º and inciso II of § 2º of this article the intermediary institution that directly receives the order of the customer, the fellowship that registered the operations or entity responsible for the liquidation and clearing of the operations, in the form regulated by the Revenue Office Federal of the Ministry of Finance.

§ 7º The value of tax withheld at the source referred to in § 1º of this article may be:

I-deducted from the net gains tax ascertained in the month;

II-compensated with the incident tax on net gains ascertained in the subsequent months;

III-compensated in the adjustment statement if, after the deduction that they treat the incisos I and II of this paragraph, there is withheld tax balance;

IV-compensated with the tax due on the capital gain in the divestments of shares.

§ 8º The income tax withheld in the form of § 1º of this article is to be collected from the National Treasury until the 3º (third) business day of the subsequent week at the date of retention.

Art. 3º Stay exempt from the income tax:

I-the gains liquids earned by physical person in transactions in the market spot on stock exchanges and in operations with financial active gold whose value of the divesments, carried out in each month, is equal to or less than R$ 20,000.00 (twenty thousand reais), for the share set and for financial active gold respectively;

II-at the source and in the declaration of annual adjustment of the physical persons, the remuneration produced by mortgage letters, certificates of receivables real estate and real estate credit letters.

Art. 4º Does not apply the provisions of the arts. 1º and 2º of this Law to the legal persons of which it treats art. 77, inciso I, of Law No. 8,981 of January 20, 1995, to foreign investors referred to in art. 16 of the Provisional Measure No. 2.189-49 of August 23, 2001 and to the entities or funds opting for the special scheme of which it treats art. 2º of the Provisional Measure No. 2,222 of September 4, 2001, which remain subject to the standards laid down in the current legislation.

Art. 5º In the transfer of title trades traded outside of scholarship, without intermediation, the entity in charge of its registration should require the federal revenue collection document that proves the payment of the income tax on the capital gain incident on the disposal or statement of the divestant on the no tax due, observed the standards set by the Office of the Federal Revenue Office.

§ 1º When the transfer is effected before the expiry of the statutory deadline for payment of the tax due, the proving that it treats the caput of this article should occur in up to 15 (fifteen) days after the expiry of the said deadline, at the end of which, if it was not carried out, the entity should report the fact to the Registry of the Federal Revenue Office in the form and term by it regulated.

§ 2º The defulfillment of the provisions of this article subject to the entity to the fine of 30% (thirty percent) of the value of the tax due.

Art. 6º The arts. 8º and 28 of the Law No. 10,865 of April 30, 2004, they go on to invigorate with the following essay:

" Art. 8º ......................................................

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§ 12. .........................................................

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XII-books, as defined in the art. 2º of Law No. 10,753, of October 30, 2003.

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" Art. 28. ......................................................

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VI-books, as defined in the art. 2º of Law No. 10,753, of October 30, 2003;

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Art. 7º The legal persons who authenticate the recipes of which treats the inciso XXIII of the art. 10 of the Law no 10,833 of December 29, 2003, they are required to install tax coupon-issuing equipment at their establishments, in the disciplined form by the Registry of the Federal Revenue Office.

Art. 8º The person legal submitted to the presumed profit could, exceptionally, in relation to the 3º (third) and 4º (fourth) quarterly-2004 calendar, establish the Income Tax on the basis of the quarterly real profit, being definitive the taxation for the assumed profit concerning the 2 (two) first trimesters, observed the standards set by the Registry of the Federal Revenue Office.

Art. 9º The incisos I and II of the art. 1º of Law No. 8,850 of January 28, 1994, they go on to invigorate with the following essay:

" Art. 1º ......................................................

I-from 1º to January 2004 a to September 30, 2004: fortnightly; and

II-as of 1º October 2004: monthly.

................................................................... " (NR)

Art. 10. Items 1 and 2 of point c of the inciso I of the art. 52 of Law No. 8,383 of December 30, 1991, they go on to invigorate with the following essay:

" Art. 52. ......................................................

I-...............................................................

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c) ...............................................................

1. in relation to the generative facts that occur in the period from September 30, 2004 to September 30, 2004: up to the last working day of the subsequent decent to the fortnight of occurrence of the generative facts; and

2. in relation to the generative facts that occur from Oct. 2004: up to the last working day of the subsequent fortnight to the occurrence month of the generative facts;

................................................................. " (NR)

Art. 11. Without prejudice to the provisions of the inciso I of § 10 of the art. 8º and in the inciso I of the art caput. 16 of Law No. 9,311 of October 24, 1996, will be provided to launch the current account debit of deposit for investment to carry out operations with the securities of which they treat the aforementioned incisos, provided that it is maintained control, separately, by the intervening institution, of the securities acquired through the current accounts of deposit in sight and investment.

§ 1º The values regarding the settlement of the operations with the securities of which it treats the caput of this article, acquired through launching the debit into current account of deposit for investment, will be credited or debited to that same account.

§ 2º As stakeholder institutions should maintain controls on segregated accounts that allow to identify the source of the resources that will be invested in stocks and derivative products from the current account and account for investment.

Art. 12. Science will be given to the passive subject of the act that would exclude him from the debit parceling with the Registry of the Federal Revenue Officer, with the Attorney General of the National Finance and with the National Institute of Social Insurance-INSS, of which they treat the arts. 1º and 5º of Law No. 10,684 of May 30, 2003, upon publication in the Official Journal of the Union.

Single paragraph. It is waived the publication that it treats the caput of this article in cases where it is given science to the taxable person personally or by post, with acknowledgement of receipt.

Art. 13. The Tax Regime is hereby established for Encouragement of Modernization and Extension of the Port Structure-REPORTO, pursuant to this Act.

Art. 14. The sales of machinery, equipment and other goods, in the domestic market, or their import, when purchased or imported directly by the REPORTO beneficiaries and intended for their immobilized asset for exclusive use in ports in the carrying out cargo, unloading and moving services of goods, will be effected with suspension of the Industrialized Products-IPI, of the Contribution to the PIS/PASEP, of the Contribution to the Social Security Financing-COFINS and, when it is the case, of the Import Tax.

§ 1º The suspension of the Import Tax and IPI converts to exemption after the course of the 5 (five) years, counted from the date of occurrence of the respective fact generator.

§ 2º The suspension of the contribution to the PIS/PASEP and COFINS converts into operation, inclusive of import, subject to aliquot 0 (zero) after the course of the 5 (five) years, counted from the date of occurrence of the respective generator fact.

§ 3º The application of the tax benefits, concerning the IPI and the Import Tax, shall be conditional on the substantiation, by the beneficiary, of the discharge of tributes and contributions federal and, in the case of IPI tied to import and Import Tax, to the formalization of liability term in relation to the suspended tax credit.

§ 4º The suspension of the Import Tax only will be applied to machinery, equipment and other goods that do not possess similar national.

§ 5º The transfer, to any title, of ownership of the goods purchased in the domestic or imported market by application of the REPORTO, within the time limit set out in § § 1º and 2º of this article, should be preceded by permission of the Registry of the Federal Revenue Officer and the pick-up of the suspended tributes, plus interest and fine of arrears set out in the legislation applicable.

§ 6º The transfer referred to in § 5º of this article, previously authorized by the Registry of the Federal Revenue Officer, the acquirer also framed in the REPORTO will be effective with dispensation of the collection of the suspended tributes provided that, cumulatively:

I-the acquirer formalize new term of liability referred to in § 3rd of this article;

II-assume before the Registry of Revenue Federal the responsibility for the tributes and suspended contributions, from the time of occurrence of the respective generative facts.

§ 7º The executive branch will relate the machines, equipment and goods of the suspension referred to in the caput of this article.

Art. 15. They are beneficiaries of the REPORTO the port operator, the organized port concessionaire, the tenant of public use port facility and the company authorized to explore mixed-use port facility.

Single paragraph. The Federal Revenue Office will set the requirements and procedures for habilitation of the beneficiaries to the REPORTO.

Art. 16. The REPORTO applies to the acquisitions and imports effected until December 31, 2007.

Art. 17. Sales effected with suspension, exemption, aliquot 0 (zero) or non-incidence of the Contribution to PIS/PASEP and COFINS do not prevent the maintenance, by the seller, of the credits linked to those operations.

Art. 18. By a time limit of 10 (ten) years from the duration of the Act No 9,432 of January 8, 1997, will not the Additional Freight for the Renewal of the Merchant Navy be concerned? AFRMM on the goods whose origin or whose destination is port located in the North and Northeast Region of the country, except for double-botked hull vessels, intended for the transport of fuels, the deadline of which will be 25 (twenty five) years.

Art. 19. The waiver or authorization to deposit into bank account of values arising from judicial precatory only may occur upon presentation to the judgment of negative federal, state, municipal, as well as certial tax certificates of federal, of regularity to with Social Security, the Service Time Guarantee Fund? FGTS and the Union Active Debt, after hearing the Public Farm.

Single paragraph. It does not apply the willing in the caput of this article:

I-to the credits of a food nature, inclusive of honorary law;

II-to credits of equal or lower value to the provisions of the art. 3º of Law No. 10,259 of July 12, 2001, which provides on the institution of the Special Juvenile Courts and Criminals within the framework of the Federal Justice.

Art. 20. The subpoenas and notifications of which treat the arts. 36 a 38 of the Supplementary Act No. 73 of February 10, 1993, including those pertinent to administrative proceedings, when addressed to Prosecutors of the National Farm, shall personally give itself upon delivery of the autos with a view.

Art. 21. The arts. 13, 19 and 20 of Law No. 10,522, of July 19, 2002, go on to invigorate with the following essay:

" Art. 13. ......................................................

§ 1º The lack of payment of 2 (two) installments will imply the immediate termination of the installment and, as the case may be, the remittance of the debit for the enrollment in Active Debt of the Union or the continuation of the execution, vetted the repairing, with the exception of that provided for in § 2º of this article.

§ 2º Saved the provisions of the art. 11 of Law No. 10,684, of May 30, 2003, " which deals with parceling of debits attached to the Secretariat of the Federal Revenue Office, to the Attorney General of the National Finance and to the National Social Insurance Institution? INSS and gives other arrangements ", will be admitted the repairing of the debits enrolled in Active Debt of the Union, observed the following:

I-when formulating the application for repairment, the debtor must substantiate the value pick-up corresponding to 20% (twenty percent) of the consolidated debit;

II-terminated the repair, new concessions will only be accepted in the event that the application comes accompanied by proof of the pick-up of the corresponding value to 50% (fifty percent) of the consolidated debit;

III-apply in a subsidiary to the requests for repairing, in what other than to counteract it, the remaining provisions regarding the parceling provided for in this Act. " (NR)

" Art. 19. Is the Attorney General of the National Finance authorized not to contest, to not appeal or to give up what has been interposed, provided that there is no other relevant ground, in the hypothesis of the versar decision on:

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§ 1º In the subjects of which it treats this article, the Prosecutor of the National Finance that acting in the feat should expressly acknowledge the provenance of the application, when cited to present response, hypothetical in which there will be no conviction in fees, or manifest their disinterest in resorting, when subpoenaed from the court ruling.

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§ 4º The Office of the Federal Revenue Office will not constitute the tax credits relating to the subjects of which it treats the inciso II of the caput of this article.

§ 5º In the hypothesis of tax credits already constituted, the launcher authority should review from office the launch, for effect of totally or partially altering the tax credit, as the case may be. " (NR)

" Art. 20. They will be filed, with no casuity in the distribution, upon application by the National Finance Prosecutor's Office, the autos of the tax executions of debits enrolled as Active Debt of the Union by the Attorney General of the National Finance or by it charged, of consolidated value equal to or less than R$ 10,000.00 (ten thousand reais).

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§ 2º Will be extinguished, upon application by the National Finance Prosecutor's Office, the executions that versem exclusively on fees due to the National Farm of value equal to or less than R$ 1,000.00 (thousand reais).

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§ 4º In the case of meeting of proceedings against the same debtor, in the form of the art. 28 of the Act No 6,830 of September 22, 1980, for the purposes of which it treats the limit indicated in the caput of this article, shall be considered the sum of the consolidated debits of the inscriptions assembled. " (NR)

Art. 22. The art. 17 of Law No. 9,430 of December 27, 1996, passes the vigour with the following essay:

" Art. 17. ......................................................

Single paragraph. The Office of the Federal Revenue Office and the Central Bank of Brazil will dispatch instructions for the ascertaining of the net result, on the movement of foreign exchange related to those operations, and others that are necessary for the execution of the provisions of this article. " (NR)

Art. 23. This Law comes into effect on the date of its publication, producing effects:

I-on the arts hypothesis. 1st to 5th and 7th, as of ;

II-in the art hypothesis. 11, as of ;

III-on the date of its publication, in the remaining hypotheses.

Art. 24. The art is revoked. 63 of Law No. 8,383, of December 30, 1991, as of December 30, 1991, and § 2º of the art. 10 of Law No. 10,925, of July 23, 2004.

Brasilia, December 21, 2004; 183º of Independence and 116º of the Republic.

LUIZ INACIO LULA DA SILVA

Antonio Palocci Filho