THE NORMATIVE ASPECTS OF THE BRAZILIAN PUBLIC DEBT
Marcelo Bernardino Araújo
Paulista University, Brazil
E-mail: mbernardinos@gmail.com
Alex Borges
School of Commerce Álvares Penteado Foundation -
FECAP, Brazil
E-mail: ab_sbo@yahoo.com.br
Vilson Vendramin Junior
School of Commerce Álvares Penteado Foundation -
FECAP, Brazil
E-mail: juniorvendramin_@hotmail.com
Anisio Candido Pereira
School of Commerce Álvares Penteado Foundation - FECAP,
Brazil
E-mail: profanisio@fecap.br
Submission: 22/04/2016
Revision: 11/05/2016
Accept: 10/06/2016
ABSTRACT
The purpose of this paper
is to present the normative acts about the public debt, specifically the Brazil
Public Responsibility Law that was issued as an enforcement mechanism, as well
as to discipline public planning and expenditure, providing tools to penalize
public managers. The study aims to interpret the current legislation about
governmental budget by analyzing regulations. We pointed that Brazil ended 2015
with a debt comprising 66.23% of its GDP. Thus, it requires attention of public
managers, once there are legal limits for public indebtedness for
Municipalities and States, but not for the Federal Government. The methodology
known as indirect documentation was applied as a theoretical foundation i.e. bibliographic
research. For the general review were used secondary data available in books,
specialized websites and laws and regulations. In Romania, the indebtedness
level represented 39.6% of the GDP in 2014, in Brazil 57.19%. The Treaty of
Maastricht in 1992, stipulated the limit of 60% of the GDP for the Euro Zone
countries. Nevertheless, the debt represented 91.9% of the GDP, especially due
to Greece, Italy, Portugal, Spain and France. The Brazilian Fiscal
Responsibility Law has been developed from the experience of the tax laws of
the United States and New Zealand. It is a reinterpretation of the applicable
rules the Brazilian public debt compared with the limits set for the countries
of the eurozone. Debt control is essential to maintain the level of investment in a
country. A sharp increase harm its credibility in the market.
Keywords: Public
debt; Public indebtedness; Public responsibility legal act; Fiscal
responsibility law; Gross domestic product; Brazilian finance
1. INTRODUCTION
Brazil has dealt with high level of public
indebtedness since 1965 and it was aggravated in 1993 due to the economic plans
“Plano de Ação Econômica do Governo – PAEG” and the “Plano Real”’, that aimed
to reduce the inflationary process. The Complementary Law No. 101, issued in
May 3, 2000, known as “Lei de
Responsabilidade Fiscal – LRF”
(Fiscal Responsibility Law), came to provide efficiency to several
constitutional provisions about the balance of the public accounts of the Federal
Constitution issued in 1988, especially the articles No. 163 and 169.
The
LRF, as a complementary law, is a special modality of legal act introduced in
the Brazilian legislation since the Federal Constitution issued in 1967 that
aims to affirm similar rights originally outlined in the Magna Carta. The
Brazilian fiscal responsibility law has been developed from the experience of
the tax laws of the United States (Tax Equity and Fiscal Responsibility Act of
1982) and New Zealand (The Fiscal Responsibility Act of 1994).
With
the enactment of the Federal Constitution 1988 and more recently with the
enactment of the Fiscal Responsibility Law, the Audit Courts started to inspect
not only the legality, but the economy, effectiveness, efficiency, and now, due
to the responsiveness, effectiveness (the result). The Audit Courts are aware
of the demands of society, so much so that are implementing new verification
methods such as performance audits, management and program, not to the
detriment of aspects relating to compliance (MORAES, 2005). The Audit Courts
judges the public account managers and others responsible for money, goods and
public values , as well as the accounts of any person who has caused the
loss, misplacement or other irregularity resulting in losses to the public
exchequer.
It is
remarkable that the LRF does not permit new expenditures to be financed by
inflation, increase in taxes, increase in debts, future taxes receipts, amount
owed and taxes break. Moreover, it does not allow the creation of new expenses
without an adequate forecasting for the budget.
This law
also emphasizes that the public resources do not belong to the State, and
especially to the public managers, but to the society that delegates the
prerogative to the public managers to administer it. As a consequence, it is
necessary to detach the public resources to the private, and then the public
manager has the obligation to account the expenditures.
Therefore,
to receive the seal of legitimacy, plans, budgets, laws of budgetary
guidelines, benefits accounts, containing the previous opinion, the summarized
report on budget implementation and reporting of fiscal management, including
simplified versions should be widely reported by official media and other
information vehicles, encouraging the popular action through the holding of
public hearings, especially in the phases of preparation and discussion of the
plans, the LDO and budgets (TOLOSA FILHO, 2000).
In several
basic aspects, the Brazilian Fiscal Responsibility Law – LRF is a code of best
fiscal practices and it is applicable to every level of public administration:
Federal, States, Federal District and Municipalities. It is worth noting that all employees in any
level of the public hierarch must comply with it. The basic principles that
guided the LRF creation establish that the public manager must keep the balance
between the society needs and the available resources.
Based on the
previous comments, the article aims to respond the following question:
Which legal
mechanisms were established by the Fiscal Responsibility Law to cease the
public indebtedness?
The article
aims to identify the mechanisms created by the LRF to reduce the public
indebtedness, comprehending Federal, States, Federal District and
Municipalities. We also aim to study the Brazilian public debt and Fiscal
Responsibility Law as well to identify the limits to the public debt.
The
Brazilian Federal Congress sets the limits to the public debt due to a
presidential proposition. Thus, based on the publication issued in December 21,
2001 and issued in April 10, 2002 and its alterations provided by Resolution
No. 5, issued in 2002, according to the article 3, it establishes the issuing
of the Resolution No. 40, 2001, providing a consolidate text.
This
resolution discusses about the global limits of the total public debt and
security debt of the States and Municipalities, according to article 52, VI and
IX of the Federal Constitution. These limits are also defined as a percentage
of the public current revenue – RCL of Federal, State, Federal District and
Municipalities governments. The public managers must follow the ratio between
debt and payment capability. And, they must not increase the debt to cover
ordinary expenses.
It is
important to point that if the public managers overpass the limits of the
public debt, they must pay it in twelve months, decreasing at least 25% of the
debt in the next four months, as quoted by Barros (2001), having amortization
of the minimum established, the rest, i.e. 75% must be paid in eight months
following.
But, if the
public managers overpass the public debt limits the public administration will
not be able to contract new credit operations.
2.1.
The legal aspects of the public debt
The Fiscal
Responsibility Law establishes rigid standards to control the debt and
indebtedness of the public entities. It presents basic concepts, limits and
conditions to restore the debt to the permissible level, new conditions to
contract credit operations. It also highlights the future tax receipt and the
granting of guarantees. It tends to change the behavior of public managers
revealing the public financial accounting.
It creates
periodical reports, (bi monthly, quarterly, annual) and quarterly public
audiences focusing on the fiscal target as well as the transparency of the
information.
2.2.
The floating public debt
In a budget
outlook, the items in the Law No. 4,320/1964 are considered as current
liabilities or short term liabilities. Table 1 shows the composition of the floating
public debt:
Table 1: Legal ratings for Floating
Debt
Law No. 4,320/1964, Art. 92 |
Decree No. 93,872/1986, Art. 115, § 1º |
I – the amount owed, excluding the debt
services; |
a) the amount owed,
excluding the debt services; |
II – the services of the debt to be paid; |
b) the services of the
debt; |
III – the deposits; |
c) the deposits,
including payment deducting loan; |
IV – the debts. |
d) the credit
operations due to future taxes receipt; |
|
e) the currency or
fiat money. |
The currency is not a current liability,
even its production.
2.3.
The
amount owed
The amount
owed is, according to the definition in the article 36 of the Law No.
4,320/1964, the committed debts not paid until December 31st. Thus, they are
the governmental financial commitments.
The public
managers are not allowed to commit debts in the last quarterly of their terms,
according to the article 42 and 20 of the LRF, as follow:
-
The debt is
not payable during their terms;
-
There are
installments to be paid in the next year and there is no income to pay it;
The result
is that cannot be done last minute agreements that encumber the next term, or
leave outstanding commitments that cannot be paid with term resources. This is
one of the major constraints of the Fiscal Responsibility Law, creating
limitations to the efforts of mayors in the last year in office. It will allow
the new administration to start a management running the new government plan
and not waiting one to two years to do so, according to the severity of the
financial legacy left (KHAIR, 2000).
The taxes
and committed debts to be paid until the end of the accounting period are
considered in the determination of fiscal liquidity.
2.4.
Credit
operation anticipating the budget income
The credit
operation for each accounting period is limited to the total of expenses. It
means that the loans must only be consumed by investments.
The Future
Taxes Receipt due to credit operation – ARO aims to provide budget to the
fiscal year and it must follows the regulations, according to the article 38 of
the LRF. A few regulations are described as follow:
- It must be
anticipated only after the 10th day of the fiscal year;
- It must be
refunded including interest rates until December 10th.
Admits to carrying
out a credit transaction by way of budgetary revenue anticipation, nicknamed
ARO, as a measure adopted to allow the prior raising money to momentarily
supply the cash, binding a budget forecast, as a guarantee liquidity, making it
worth recalling the prohibition contained in art. 37, paragraph I, preventing,
therefore, occur with tax revenues or contributions in taxable event not
occurred, but overall, it resembles as if the operation is assimilates the
discounting of bills, common in industry and commerce (BARROS, 2001).
The credit
operations using ARO must not be permitted if different financial burdens other
than operation interest rates are applied. They are also not allowed if there
is any similar operation not paid back during the last year term of President,
Governor or Major.
2.5.
Established
public debt
The
established public debt comprehends, according to the Law No. 4,320/1964, the
debts eligible over a period of twelve months, issued to balance the public
budget for public services and construction.
Nevertheless,
the Decree No. 93,872/1986, according to article 115 § 2º, defines the
established public debt as a commitment due to twelve months callable bonds or
contracts to balance the public budget or to finance construction and public
services, and they are dependent of legislative authorization to be repaid.
Regardless,
the LRF states that the established public debt is integrated, besides the
others financial commitments of the entities, and it is assumed due to law,
contracts, treaties or conventions, and it is amortized over twelve months due
to credit operation less than twelve months which revenues feature the budget
(article 29, § 3º), by the judicial claims not paid during the budget execution
in which they were includes are part of established debt.
From an
accounting point of view and composition of the balance sheet, Appendix 14 of
the Federal Law No. 4,320/1964, term credit operations less than twelve months
are considered floating debt and should be included in financial liabilities.
Also, based on art. 98 of Law No. 4,320, one can deduce that the period of
enforceability of financing is decisive for classification. In public
accounting, however, when there is conflict between two laws usually prevail
the higher hierarchy. In this regard, the Fiscal Responsibility Law supersedes
Federal Law No. 4,320/1964. So if the credit operation is a liability of less
than twelve months and the municipality or other entity put in the official
budget this kind of revenue it should be placed in the Permanent passive, as
Founded debt (CRUZ, 2011) note worth’s § 3º in the article 29.
Regarding
the limits of the Public Debt and the Credit Operations, the article 30 states
the period of 90 days after the publication of the LRF that the President shall
submit to:
I – Federal
Senate: proposition to the global limits of the overall debt of the established
public debt of federal, states and municipalities.
II –
National Congress: law project that sets the limit for the overall of the
mobility federal debts, according to section XIV, article 48 of the Federal
Constitution.
The article
31 describes about the reappointment of the debt to its limits, stating that
the consolidate debit of an entity must not exceed the final limit of the
quarterly debt, and it must be refunded within three subsequent months,
reducing it in at least 25% in the first four months.
Table 2: Limits of the established debt for entity
Entity |
Percentage |
Adjustment |
Sanction |
Federal |
Not defined |
Not defined |
Not defined |
States |
200% of RCL |
Excess until 2016 |
To receive voluntary transferences from 2016,
while the excess remains |
Municipalities |
120% of RCL |
Excess until 2016 |
To receive voluntary transferences from 2016,
while the excess remains |
As showed
in Table 2, the federal government does not have limits for public indebtedness
and then it is not affected by penalties. However, the States, the Federal
District and the Municipalities must respect the limits established according
to the deadline set by the Federal Senate, i.e. 2016, otherwise they are
subjected to the legal penalties regarding voluntary resource transference. As
a consequence, they will only receive constitutional transference.
2.6.
Credit
Operations
The credit operation
must not be superior to the capital expenditures during the budget elaboration
budget bill.
The 1988
Federal Constitution introduced the “golden rule”, that does not permit the
credit operations (loans) that are superior to the capital expenditures, except
for the one authorized by supplementary credit, or precise usage, of which both
must be approved by the legislature.
The
Accounting Ministry is responsible to audit the accordance to the established
limits and credit operation for all the entities, including public companies,
controlled direct or indirect by the government.
The article
33 states that the financial institution that acquires a credit operation from
any federal entity, except for mobility or external debt, must attest that the
operation is according to the permitted limits. The financial institution to
hire credit operation with the municipality, except when relating to the
securities or foreign debt, should require proof that the transaction complies
with the Fiscal Responsibility Law, being void with the return of principal,
prohibited the payment of interest and other financial charges, if this does
not happen (KHAIR, 2000).
In any case,
the legislator, as a precaution, understand required the insertion of the
featured article. Thus, the financial institution will have more interest in
controlling certain provisions of the Fiscal Responsibility Law; otherwise
interest and other financial charges will not be applied on a null transaction.
So is because if canceled the operation, the municipality will return the
principal amount; only him, no other. In appropriate circumstances, the
non-cancellation implies sanctions for the municipality; such as prevented from
receiving access to voluntary transfers from the Union and the state, obtain
guarantees and contract loans. The Tax Crimes Act qualifies as the Mayor
responsible for the crime failure to cancel credit operation regarded as
irregular (TOLEDO JÚNIOR, 2002).
According to
the article 34 and 37 the credit operations are not allowed between public
entities, including the entities administered indirectly by the government.
2.7.
The Guarantee and Counter Guarantee
The article
40 of LRF states that the public entities might concede guarantee for the
either internal or external credit operations, observing this article, the
credit operation regulation.
Barros
(2001) describes about the guarantee for credit operations, such a requirement
also reflects the legal entities of public law and all other, covered by the
law focused, where the borrowing of a loan must provide a guarantee for
obtaining the same, forced to such a charge as a result of the immunity from
seizure of public property as with the family assets.
Tolosa Filho
(2000) describes about Federal and State guarantees, when the entity debt
Federation, because of the guarantee provided, is honored by the Union and the
States, can these condition constitutional transfers to the reimbursement of
that payment, and there will be a suspension of access to new credit or
financing until full settlement of that debt.
The
guarantee is conditioned to an equal or a superior value guarantee to be
conceded by the entity that demands the ARO.
2.8.
Limits to personnel expenditures
The limits
of debts to personnel expenditures is a subject that have contributed to the
balance of the public accounting, and it increases the manager’s
responsibility, which is responsible to follow the regulations to administer
with transparence the public budget.
An important
aspect that generates discussion among the experts regards the established
limits to personnel expenditures, since it is one of the aspects related to
LRF, that aims to demonstrate the expenditures to the current employees,
retirement and pensioner.
The LRF established the regulation to the
public accounting and it also contains the legal penalties as an attempt to
avoid exaggerated expenses, as overestimate personnel expenditures, that
represent one of the main expenses on the public entities, compromising a
significant part of the budget.
The Fiscal Responsibility Law has come to
light as one of the instruments to minimize the effects of the moral crisis
that befell the public administration in general, due to the immense financial
resources of waste brutally taken from the private sector. We aimed at the
implementation of a responsible fiscal management policy promoting the
strengthening of channels through which the financial resources customarily
were consumed with greed and in a disorderly fashion: Personnel sheet and debt
service (HARADA, 2010).
The
personnel expenses are a subject that has been covered by regulation since 1995
by the Complementary Law No. 82 and edited by the Complementary Law No. 96,
rescinded by the article 75 of the LRF.
The article
18 of the LRF establishes that the amount of personnel expenses is represented
by any expenditure covering the current employees, retirement and
pensioners.
The LRF
defines that the personnel expenditures as a percentage of the current revenue,
for the three branches of government, as 50% for Federal Government, 60% for
States and 60% for the Municipalities.
Table 3: Personnel expenditure limits to the LRF
Entity |
Percentage |
Federative entity |
Federal |
0.6 2.5 3.0 6.0 37.9 |
The Public Ministry; Legislature, including the Accounting
Ministry; Federal District; Judiciary; Executive. |
State |
2.0 3.0 6.0 49.0 |
The Public Ministry in State; Legislature, including the Accounting
Ministry; Judiciary; Executive. |
Municipalities |
6.0 54.0 |
Legislature, including the Accounting Ministry
(only the municipalities of São Paulo and Rio de Janeiro; Executive. |
Source: Complementary Law No. 101/2000
and Federal Constitution from 1988
It is worth
mentioning, even to meet the desideratum objectified with the enactment of this
Act that, within the limit are all public expenditure on personnel, it
including, of course, the expense of the chief executive, the first, second and
third levels and other liens involving the payment of duties, positions and
jobs. It is time to stop the laudatory appointments, taking place at the
beginning of a public management, given the commitments made during the
election campaign without the downsizing of administrative jammed machine
(BARROS, 2001).
The Federal
Government is also responsible for the Federal District expenditures, but it
has to follow the same limits established to a State.
2.9.
Debt in eurozone
No European
nation escapes the problem of public debt, despite the severity of the crisis
differ from one country to another. On one side are the “good students” as
Bulgaria, Romania, Czech Republic, Poland, Slovakia, followed by the Baltic and
Scandinavian countries with a lower debt to 60% of GDP. On the other hand, the
four “bad students” are, whose public debt exceeds 100% of GDP: Ireland (108%),
Portugal (108%), Italy (120%) and Greece (180%). Between these two extremes lie
the other European Union countries such as France (86%), whose debt is between
60% and 100% of GDP.
However,
Dumitrescu (2014) is concerned with the change in the behavior of the public
debt of Romania in recent years.
3. RESEARCH METHOD
They were
compared in this study countries with similar growing public debt. A
methodology known as indirect documentation was applied for theoretical
foundation i.e. – bibliographic research (documental and bibliography
research). This kind of research is divided between documental and
bibliographic research (MARCONI and LAKATOS, 2005).
For the
general review secondary data available in books, specialized websites and laws
and regulations were utilized. We investigated the Brazilian current
legislation as well as similar studies in the field.
In addition,
comparative analysis was conducted using data from the debt ratio and GDP, of
Brazil and other European countries.
It is
perceived to research the complexity of the subject public finances when you
have relatively healthy economies with the public sector debt currently. What
leads us to believe that the state's size, given the philosophy of the Welfare
State, is more vulnerable than other countries.
4. RESULTS AND DISCUSSION
In Romania,
the indebtedness level represented 39.6% of the GDP in 2014, according to the
Trading Economics.
However, it
is considered low compared to Brazil, where it represented 57.19% in 2014 and
66.23% in 2015, an increase of 15.81% in just one year. But Dumitrescu (2014)
notices that in Romania, there are at least two reasons for which the Romanian’
economy present significant vulnerabilities compared to the indebtedness level.
The first reason
is the limited access to the international capital markets, where loan is
charged with high interest rates compared to developing countries, and the
undeveloped domestic financial market. The second one the deterioration of the
public budget due to the economic and financial crisis and the promotion of
unsustainable fiscal policies in the years before the crisis that increased
almost three time the public debt in the country between 2008 and 2011.
The Treaty
of Maastricht in 1992, stipulated the limit of 60% of the GDP for the Euro Zone
countries. Nevertheless, the debt represented 91.9% of the GDP, especially due
to Greece, Italy, Portugal, Spain and France. Figure 1 shows an overview of the
evolution of public debt to GDP of Brazil, Romania and euro zone countries.
Figure 1: Comparable Public debt
and % GDP
Source: Trading
Economics
Mendonça and
Pessanha (2014) conducted empirical researched about Brazilian fiscal indicator
between 2007 and 2012. It concluded that the debt management had a low impact
on the Brazilian budget, justified by the low volatility in structural terms
and the inefficient interest rates to prolong the debt payment.
For Fraglia
et al. (2008), the reason for the low impact of the public debt on the public
accounts remains on the managers that are concerned about costs reduction
despite the risks of the debt to the country.
The Federal
Government announced a blocking of R$ 69.9 billions on the 2015 budget, as well
as it predicted a retraction of 1.2% of the GDP until December, according to
Martello (2015), Portal of the Economy G1.
Brazil has
being affected by excessive expenditures and lack of confidence by the
international investors due to several corruption scandals. The National
Monetary Council has gradually increased the national basic interest rates,
Selic, that is the reference to government bonds. It will contribute to
increase the public debt in the long term, but the payback may overpass 10 year
for some bonds.
5. FINAL CONSIDERATIONS
The fiscal
responsibility law has contributed to control the irresponsible expenses of
public managers, meeting the society necessities once it is biased toward the
public welfare, due to both efficacy and efficiency, transparency in public
accounting, focusing on a high performance of public budget control.
The LRF also
reacts to electoral periods, as it defines rules disciplining the public
manager expenses during this period and it not allows the candidate to create future
unpayable debts.
Therefore,
the main limitations to the LFR are: limiting the personnel expenses (one of
the biggest expenditures on the public budget) and the limitation for public
debts (conditioning the federal entities maintain the debt based on the net
current revenue). It demands a fiscal effort to generate primary surplus, i.e.
the positive value between debt and not financial income to pay the public
debt.
However, we
highlight that there is a limit to Federal public indebtedness. It undermines
either federation or equality principles, because all the public entities must
have the same legal treatment on several aspects, as public indebtedness.
It is
noticed that there is an increase of public indebtedness in some counties,
including Brazil, due to lack of regulations to set the limits. In the Euro
Zone there is a regulation (Treaty of Maastricht), but it is not being
fulfilled by various members.
We suggest
that future studies address the relationship of public debt variation using qualitative
inference, by region and application of public policies for current and new
governments.
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