Transfer-of-goods tax ruling followed precedent for nonprofit transactions

            CHAPADA DOS GUIMARÅES, Mato Grosso,  Brazil––The retired Asian elephant Ramba,  52,  arrived late on October 18,  2019 at the Santuário de Elefantes do Brasil,  or Elephant Sanctuary Brazil,  after a 73-hour journey from Chile.   The transaction was completed after the elephant sanctuary won a ruling from Judge Leonísio Salles de Abreu Jr.,  of the first Civil Court at Chapada dos Guimarães,   Mato Grosso,  Brazil,  which has been widely but erroneously acclaimed as an important precedent for animal rights.

The Civil Court at Chapada dos Guimarães is not an appellate court,  far enough up the judicial ladder to establish precedents of actual legal weight.

Judicial language

Superficially,  at least,  Judge Abreu ruled in alignment with precedent in a fairly routine tax case,  holding the transfer of Ramba to the sanctuary to be a non-commercial transaction,  therefore not subject to the Brazilian transfer-of-goods tax,  or ICMS,  a mainstay of Brazilian governmental funding.

In his ruling,  however,  Judge Abreu used several phrases which,  at least in translation,  suggest that he recognized that Ramba shares “personhood” with human beings,  a legal goal sought by animal rights activists for decades,  on behalf of an array of intelligent species also including great apes,  marine mammals,  and other elephants.

A complicating factor in translating Abreu’s verdict is that in Portuguese,  the national language of Brazil,  nouns are either “masculine” or “feminine,”  as in other languages derived originally from Latin.  In Latinate languages,  therefore,  no animal is simply an inanimate object,  as in English,  in which “masculine” and “feminine” nouns are often,  though never always,  reserved for human beings.

$13,000

Chapada dos Guimarães had tried to charge ICMS tax totaling $13,000 U.S. on the arrival of Ramba,  a tax apparently not collected on the arrival of three other elephants,  Guida (now deceased),  Rana,  and Maia.   The amount was based on Ramba’s estimated commercial value.

The Santuário de Elefantes do Brasil contested the charge and won.

Exulted Jaqueline B. Ramos,  communication manager for Global Action Project International and journalist for Ambiente-se Comunicação (Environmental Communication),  “The reason [Judge Abreu] presented was as simple as this:  Ramba is not a thing to be imported.  The judge argued that,  in practical terms,  Ramba was not acquired by the sanctuary,  nor does she belong to it in patrimonial terms,  so she cannot be considered as a commodity nor good purchased for importation purposes.

Refugee status?

“The judge pointed out that Ramba’s position,  far from being a commodity,  is now that of a guest who seeks a new home far from the harm that human evil has already caused her.

“Usually the taxation on goods is charged on any kind of animal transfer from one place to another within the country,”  Ramos mentioned,  “which makes Abreu Junior’s decision an important pivot and a huge contribution to the efforts of lawyers who work on the recognition of non-human rights all over the world.”

But Ramos neglected to mention that most animal transfers within Brazil involve livestock,  sold to slaughter,  not animals sent to nonprofit sanctuaries to live out their natural lives in peace.

“Ramba had been living in a small barn at Rancágua Park Safari in Chile since 2012,”   Ramos continued,  after more than 30 years of performing in circuses in Chile and Argentina.

Last circus elephant in Chile

Ramba was transferred to the Santuário de Elefantes do Brasil,  a project of the Tennessee-based Global Sanctuary for Elephants,  with the help of the Brazilian nonprofit organization Ecópolis,  Ramos said.   Ramba had been the last circus elephant left in Chile.

Commented Global Sanctuary for Elephants and Santuário de Elefantes do Brasil cofounder Scott Blais,  “People here and in the U.S. often think that the US is ahead of most of the world in regards to animal rights,  but the progressiveness of Brazil was part of the reason for deciding to create a sanctuary here.

“We talk about the costs of rescues,”  Blais posted to Facebook,  “and this $13,000 tax was just part of the larger figure.  Thankfully, the judge decided it was not something that needed to be paid,  partly because the judge viewed Ramba as a ‘guest’ and not property.

“Many thanks to the judge for seeing Ramba for who she is and for helping to shift the view on recognizing elephants as beings and not things,”  Blais continued.  “And thanks to our pro bono lawyers who are constantly working to help our elephants.”

Brazilian sanctuary founded by former Elephant Sanctuary staff

Reportedly suffering from abscesses and kidney and liver problems,  Ramba “was flown [from Chile] to the Viracopos international airport near Sao Paulo a day before heavily armed gunmen raided the cargo terminal in a daring heist,”  reported Agence France Presse.

The robbers,  disguised as police,  absconded with an estimated $30 million to $40 million worth of gold.

“Ramba was then transported by flat-bed truck to the sanctuary,”  Agence France  Presse added.

The sanctuary was opened by Scott and Katherine Blais on a 2,800-acre former cattle ranch in October 2016.

Scott Blais and Carol Buckley cofounded The Elephant Sanctuary in Hohenwald,  Tennessee in 1995.  Buckley,  who left the Elephant Sanctuary a year earlier,  now heads Elephant Aid International,  headquartered in Attapulgus,  Georgia.

Katherine Blais,  wife of Scott Blais,  joined The Elephant Sanctuary team in 2005,  and worked there until they left together in 2011.

The Santuário de Elefantes do Brasil management team also includes former Elephant Sanctuary director of development and communication Jill Moore.

The first elephant arrivals,  both retired from circuses,  were Guida,  who died in June 2019,  and Maia.  Both were transported overland from Paraguacu,  Brazil,  nearly 1,000 miles away.  A third former circus elephant,  Rana,  arrived on December 21,  2018.

Like Ramba,  all three were Asian females.

Freed by writ of habeas corpus,  orangutan arrives in U.S.

Ramba reached the Santuário de Elefantes do Brasil about a month after Sandra,  33,  an orangutan involved in another purported “personhood” precedent,  was on September 27,  2019 flown from Buenos Aires,  Argentina,  to the Sedgewick Zoo in Wichita,  Kansas.

Following a mandatory quarantine,  Sandra is to be transferred to the Center for Great Apes sanctuary in Wauchula,  Florida.

Born on Valentine’s Day 1986 at the Rostock Zoo in the portion of Germany which was then East Germany,  and originally named Marisa,  Sandra is a hybrid of the Bornean and Sumatran orangutan subspecies.  Because Sandra is not exclusively either Bornean or Sumatran,  she was unwanted by accredited zoos.  After one zoo-to-zoo transfer in Germany,  Sandra was exported to the  the Buenos Aires Zoo in September 1994,  where her name was changed.

Hybrid

As a hybrid,  born in captivity,  under international conservation protocols in effect since 1995,  Sandra could not be introduced into any population in either the wild or captivity where she might have the opportunity to breed.

But Argentinian Second Appeals Court judge Elena Liberatori on December 19, 2014 ruled on behalf of the Buenos Aires-based Asociación de Funcionarios y Abogados por los Derechos de los Animales that Sandra had been unjustly imprisoned for 20 years,  and granted her a writ of habeas corpus.

The Argentinian verdict,  like Judge Abreu’s verdict favoring the Santuário de Elefantes do Brasil on behalf of Ramba,  was acclaimed by animal advocates as a precedent worldwide.  The legal arguments supporting it,  however,  have limited leverage within either the legal structures of Anglo-Saxon common law,  forming the framework of law in the U.S. and most of the other nations that were once part of the British Empire,  and Napoleonic law,  the foundation of law in much of Europe and the Middle East.

Rights derived from human obligations

Specifically,  Argentine law uniquely “was the first civil law that consciously adopted as its cornerstone the distinction between rights from obligations and real property rights,” summarizes Wikipedia.

This,  Argentine courts have previously found,  means that certain types of property,  including animals,  can possess some limited rights derived from human obligations.

“Sandra’s release [to a sanctuary] seemed imminent,”  wrote Luis Andres Henao and Almudena Calatrava of Associated Press.  It seemed even nearer when the 140-year-old Buenos Aires Zoo where Sandra lived for most of her life closed [in 2016].”

But actually accomplishing the transfer to the Center for Great Apes has taken three more years.

Writ of habeas corpus also granted to chimp

The writ of habeas corpus granted to Sandra the orangutan was followed two years later by a writ of habeas corpus granted on behalf of a 19-year-old chimpanzee named Cecelia on November 3,  2016 by Judge Maria Alejandra Mauricio,  of the Third Court of Guarantees in Mendoza,  Argentina.

That writ of habeas corpus facilitated the transfer of Cecelia from the Mendoza Zoo,  where she occupied facilities built in 1941,  to the Great Primates Sanctuary of Sorocaba,  near Sao Paulo,  Brazil.

As in the Sandra case,  the Cecilia verdict resulted from litigation filed by the Argentina Lawyers Association for the Rights of Animals and the Great Ape Project.

“Animals are not things”

“The habeas corpus recognition means that animals are not things any more,  and puts them in the right place,  recognizing their rights,”  said Argentina Lawyers Association for the Rights of Animals president Pablo Buompadre,  in a statement published on the Great Ape Project web page.

However,  also as in the Sandra case,   the writ of habeas corpus granted to Cecilia ––according to Judge Mauricio’s own 46-page explanation of the verdict––was not the step toward legal recognition of “personhood” for non-human great apes that others have pursued in unsuccessfully seeking writs of habeas corpus on behalf of chimpanzees in the U.S. and Austria.

Cecilia arrived at the Great Primates Sanctuary during the last  days of August 2017.  Cecilia reportedly shares her sanctuary habitat with a male chimpanzee,  ten years younger,  who was born there.

(See Argentinian court grants zoo chimp a writ of habeas corpus and Courts rule that orangutan in Argentina has more rights than chimp in New York state,  N.Y. judge starts habeas corpus procedure for two lab chimps,  and “Change laws in legislature” say courts in chimp & elephant rulings.)

 

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