By Maria Eugênia Doin Vieira and Lucas Henrique Hino   In the disclosure of its report on the implementation of the telecommunications sector public policies, the Brazilian Court of Audit (TCU, from the Portuguese Tribunal de Contas da União) concluded that the application of the resources of the Telecommunications Universal Service Fund (FUST, from the Portuguese Fundo de Universalização dos Serviços de Telecomunicações) and of the Telecommunications Inspection Fund (FISTEL, from the Portuguese Fundo de Fiscalização das Telecomunicações), formed by contributions from telecommunications and radio frequency service providers, was wrong, according to Laws 9998/00 and 5070/66.

By Maria Eugênia Doin Vieira and Lucas Henrique Hino

In the disclosure of its report on the implementation of the telecommunications sector public policies, the Brazilian Court of Audit (TCU, from the Portuguese Tribunal de Contas da União) concluded that the application of the resources of the Telecommunications Universal Service Fund (FUST, from the Portuguese Fundo de Universalização dos Serviços de Telecomunicações) and of the Telecommunications Inspection Fund (FISTEL, from the Portuguese Fundo de Fiscalização das Telecomunicações), formed by contributions from telecommunications and radio frequency service providers, was wrong, according to Laws 9998/00 and 5070/66.

In accordance with their analysis, only a small portion of the sums collected to FUST and to FISTEL was employed in the accomplishment of their legal purposes, whereas a large part of the funds was not even used. In other words, in the case of FUST, the sums were not allocated to the expansion of the offer of communication services where exploration is not profitable. In the case of FISTEL, the sums were not applied to fund the inspection of the telecommunications services.

In view of TCU′s finding that the funds′ purpose was deviated, the taxpayers will naturally contemplate whether there are legal grounds for them to be compelled to contribute to the funds in question, which do not keep any correlation with their activities.

This is not the first situation of this kind to be faced. In recent years, many taxpayers challenged the payment of the supplement to the Severance Pay Indemnity Fund (FGTS, from the Portuguese Fundo de Garantia do Tempo de Serviço), created by Article 1 of Complementary Law No. 110/01.

This supplemental pay was originally created to cover the deficit related to the monetary losses resulting from inflation, applied to the FGTS accounts. However, once such purpose was exhausted, the sums collected started to be directed to the National Treasury′s single account. The Federal Supreme Court has already acknowledged the general repercussions of the matter, and will discuss the unconstitutionality of this sum in view of the exhaustion of its purpose.

In the case of FUST and FUNTEL, even if the purposes that entailed their creation prevails, it is certain that the controversy around the topic is still relevant, considering that the sums are no longer used according to their legal destination.