• Save
Aija conference   tlc - taxation in brazil - tax incentives for projects in infra-structure
Upcoming SlideShare
Loading in...5
×
 

Aija conference tlc - taxation in brazil - tax incentives for projects in infra-structure

on

  • 1,253 views

Presentation

Presentation

Statistics

Views

Total Views
1,253
Views on SlideShare
822
Embed Views
431

Actions

Likes
0
Downloads
0
Comments
0

4 Embeds 431

http://direitoemvoga.wordpress.com 428
http://webcache.googleusercontent.com 1
http://www.linkedin.com 1
https://www.linkedin.com 1

Accessibility

Upload Details

Uploaded via as Microsoft PowerPoint

Usage Rights

© All Rights Reserved

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Processing…
Post Comment
Edit your comment

Aija conference   tlc - taxation in brazil - tax incentives for projects in infra-structure Aija conference tlc - taxation in brazil - tax incentives for projects in infra-structure Presentation Transcript

  • Brazil – Tax Scenario and Incentives for Projects in Infra-Structure
    • José Rubens V. Scharlack
    • Professor at Fundação Armando Álvares Penteado (FAAP);
    • Founding partner of Rodante & Scharlack Advogados;
    • 2 nd Vice-President and Legal Director of the Belgian-Luxembourgish-Brazilian Chamber of Commerce and Industry in Brazil – Belgalux (June/2010 - March/2011);
    • Professor at Fundação Getúlio Vargas (FGV) (2008);
    • Coordinator of the Belgalux Legal Commission (2008);
    • LL.B from the Law School of the University of São Paulo (USP);
    • Specialization in Tax Law from Fundação Getúlio Vargas (FGV);
    • Master degree in Business Administration (MBA) from FAAP;
    • Author and co-author of several books and articles in the tax field;
    • Member of the Consulting Council of the São Paulo Association of Tax Studies.
    • August 25 th , 2011.
  • I. Basic Information on the Brazilian Tax System
  • Preliminary Clarification
    • An ancient discrimination in the Brazilian legal system...
    National Capital Brazilian Company Foreign Capital Brazilian Company
    • ... No longer exists since 1995.
  • 1. Setting Up Constitution (Articles of Association) Registration before the Commercial or Public Registry Enrollment before the Internal Revenue Service and the Social Security Institute
    • State Enrollment (if a manufacturing or commercial company);
    • Municipal Enrollment (if a service company);
    • Enrollment before the Central Bank of Brazil;
    • Enrollment before the Caixa Econômica Federal, etc.
    Limited Liability Company – “ Ltda. ”
    • Small Businesses Law Unique Enrollment for small businesses
  • 2. Federal Taxation System Options Pretax Profit System Presumed Profit System Unified System for the Payment of Taxes by Small Businesses – “SIMPLES” The company’s net profit adjusted by additions and exclusions determined by the legislation is the calculation basis for the federal income taxes. A percentage of the company’s gross income is the calculation basis for the federal income taxes. A percentage of the company’s gross income is the calculation basis for all revenue, sales and income taxes. (Mandatory for financial institutions, real state companies, companies that receive income from outside Brazil or tax benefits or companies with yearly gross income from R$ 48 million up) (Cannot opt for this system, among many other exclusions, companies with yearly gross income superior to R$ 2,4 million, companies with partners outside Brazil and companies from the energy and automotive fields)
  • 2.1. Taxation under the Pretax Profit System Income Taxes: Revenue Taxes:
    • IRPJ
    • CSLL
    • PIS
    • COFINS
    1,65% on gross revenue 7,6% on gross revenue Allowed the deduction of “credits” regarding expenses foreseen at the legislation. 25% on net profit 9% on net profit Allowed the partial offsetting of losses incurred by the company in previous years
  • 2.2. Taxation under the Presumed Profit System Income Taxes: Revenue Taxes:
    • IRPJ
    • CSLL
    • PIS
    • COFINS
    0,65% on gross revenue 3% on gross revenue There is no “credit” deduction in this system 2%, 4% or 8% on gross revenue 0,72%, 1,44% or 2,88% on gross revenue Also Revenue Manufacturing and commercial companies Transportation Services companies Service companies There is no loss-offsetting in this system
  • 2.3. Taxation – Industrial Companies Revenue and Income Taxes:
    • PIS
    • COFINS
    • IRPJ
    • CSLL
    Payroll Taxes:
    • INSS
    • SAT / Sal. Educ.
    • “ S – System”
    Manufacturing Tax:
    • IPI (VAT- Excise Tax)
    Pretax or Presumed Profit Systems
    • ICMS (VAT – Sale of Goods)
    Rates vary according to the Table of IPI Incidence Sales Tax: Rates vary from 7% to 18% 28,8% on the company’s payroll
  • 2.4. Taxation – Commercial Companies Revenue and Income Taxes:
    • PIS
    • COFINS
    • IRPJ
    • CSLL
    Payroll Taxes:
    • INSS
    • SAT / Sal. Educ.
    • “ S – System”
    Pretax or Presumed Profit Systems
    • ICMS (VAT – Sale of Goods)
    Sales Tax: Rates vary from 7% to 18% 28,8% on the company’s payroll
  • 2.5. Taxation – Service Companies Revenue and Income Taxes:
    • PIS
    • COFINS
    • IRPJ
    • CSLL
    Payroll Taxes:
    • INSS
    • SAT / Sal. Educ.
    • “ S – System”
    Pretax or Presumed Profit Systems
    • ISS
    Services Tax: Rates vary from 2% to 5% 28,8% on the company’s payroll
  • 3. Taxation – Imports During customs clearance imports are taxed by:
    • Import Tax (I.I.)
    • Excise Tax (I.P.I.)
    • Sales Tax (ICMS)
    • PIS/COFINS
    Tax credit for industrial and commercial companies Tax credit for companies that choose the Pretax Profit System
  • 4. Taxation – Exports During customs clearance exports are:
    • Taxed by Export Tax (I.E.)
    • Exempt from IPI, ICMS, ISS, PIS and COFINS
    • Subject to IPI Presumed Credit – a tax credit that is used to offset the financial impact of taxes paid within Brazil.
  • 5. Manaus Free Trade Zone (ZFM) ZFM
    • Imports to ZFM:
    • II Exemption
    • IPI Exemption
    • ICMS Suspension
    • PIS/COFINS Suspension
    • Exports from ZFM:
    • IPI, ICMS, PIS and COFINS Exemption
    • No IRPJ/CSLL taxation
    • Sales to the rest of Brazil:
    • IPI Exemption
    • PIS/COFINS at lower rates
    • No IRPJ/CSLL taxation
  • 6. Special Customs Regimes
    • Customs Drawback:
    • Suspension or devolution of Import Taxes for goods that are manufactured in Brazil and re-exported.
    • Temporary Admission:
    • Partial suspension of Import Taxes for goods or machinery that will stay temporarily in Brazil.
    REEA… … RECOF… … Many others…
    • Special Deposit:
    • Import Taxes are only triggered once the goods are sold within Brazil.
    • REPES:
    • No IPI/PIS/COFINS taxation on the acquisition of inputs for the manufacture of informatics products or services that will be exported.
  • 7. Taxation – Payments Offshore
    • Interests are subject to IR-WHT and new thin capitalization rules ;
    • Royalties are taxable by IR and CIDE;
    • Payments for services are subject to IR, PIS, COFINS, ISS and CIDE.
    • Belgium has signed with Brazil a Treaty to Avoid Double Taxation.
    • Dividends are exempt from Income Taxes;
    • Payments to related companies are subject to Brazilian Transfer Pricing Rules ( new method – PVL ).
  • 7.1. Thin Capitalization Rules
    • Payment of interests to related companies are only deductible from taxable income to the extent that:
    • Such expense is necessary to the legal entity’s social activities;
    • The debt related to the interest paid is not superior to twice the equity the related company holds in the legal entity; and
    • The total debt of the legal entity is not superior to twice the total equity of the legal entity;
    • For loan agreements not registered before the Central Bank of Brazil, the deductibility of interests is limited to Libor + 3%/year.
    • Severe limitations if the payments are made to companies established in tax havens .
  • 7.2. New Rule on Tax Havens
    • Under Law 11,727/2008, is considered a tax haven any country or jurisdiction which:
    • Does not tax income or taxes it with a maximum rate inferior to 20%;
    • Grants tax advantages to foreign individuals or legal entities without demanding substantial economic activity in the country or demanding the absence of such activities;
    • Does not tax income from outside its territory or taxes it with a maximum rate inferior to 20%;
    • Does not allow access to information regarding titleship of shares, quotas, properties or rights, or information related to transactions that take place there.
    • Since the former – and exhaustive – list published by Rule 188/2002 has not been formally revoked, taxpayers still refer to it for reference on tax havens.
    RISK
  • 8. New Accounting Standards in Brazil
    • Brazilian GAAP – Harmonization with the International Accounting Standards (IAS) and International Financial Reporting Standards (IFRS);
    • Tax Transitory Regime – Created in order to avoid any tax impact of the new accounting standards;
    • Optional for 2008 and 2009 – The legal entities obliged to comply with the new accounting standards could, until 2010, opt to use the RTT or not. As of 2010, RTT is mandatory for all legal entities.
    • RTT regards only federal taxation – IRPJ, CSLL, PIS and COFINS. There are no clear directives as to the impact of the new accounting standards on state and municipal taxations.
  • II. Recent Tax Incentives for Projects in Infra-Structure
  • 1. Brief Scenario
    • Deficiencies in infra-structure represent one of the main bottlenecks for Brazilian economic development;
    • The election of Brazil as host of both 2014 FIFA’s World Cup and 2016’s Olympic Games reinforces the need for urgent investments in infra-structure;
    • The results of such investments, upon removal of said bottlenecks, are relevant not only for the games but also (and mainly) for the growth of Brazilian economy and foreign trade;
    • They are, also, a great opportunity for the private sector.
    • Having anticipated this scenario, the Brazilian Federal Government has launched the Growth Acceleration Program (PAC), which created mechanisms of tax incentives in order to attract investments in infra-structure.
  • 2. Tax Incentives for Infra-Structure
    • REIDI – Special Incentives Regime for the Development of Infra-Structure;
    • REPORTO – Tax Regime for the Modernization and Growth of Port Structure;
    • REPENEC – Special Incentives Regime for the Development of Infra-Structure for Oil Industry in the North, Northeast and Midwest Regions;
    • RETAERO – Special Tax Incentives Regime for the Brazilian Aircraft Industry;
    • RECOPA – Special Tax Regime for the Construction, Ampliation, Reform or Modernization of Soccer Stadiums.
  • 2.1. REIDI
    • PIS and COFINS suspension (convertible to zero rate) on the following transactions:
    • Local purchases or imports of new machines, appliances, instruments, equipments and construction materials for usage or incorporation in works of infra-structrure;
    • Local purchases or imports of services destined to works of infra-structure;
    • Rental of machines, appliances, instruments and equipments for usage in works of infra-structure.
  • 2.1. REIDI
    • Admission on the REIDI is allowed to legal entities that own publicly approved projects on the following areas:
    • Transport
    • Energy
    • Basic Sanitation
    • Irrigation
    • Pipelines
    Roadways; Railways, including urban trains; Waterways; and Ports and port facilities. Generation and co-generation, transmission and distribution; and Natural gas production and processing. Drinking water; and Sewages. (can also be co-admitted to the REIDI companies that have signed construction services agreements with the owner of the project.)
  • 2.1. REIDI
  • 2.1. REIDI
  • 2.2. REPORTO
    • IPI , PIS and COFINS suspension (convertible in zero rate after five years) and ICMS exemption (in most States) on local purchases or imports of machines, equipments spare parts and other goods, as long as they are registered as fixed assets of the buyer and exclusively used:
    • In ports during execution of loading, unloading and cargo movement services;
    • In dredging services;
    • In the training of workers (for Professional Training Centers); and
    • In railroad construction and in railroad transportation (of goods) services.
    • I.I. suspension also applies if the imported goods do not have a national similar.
  • 2.2. REPORTO
    • Can apply for the REPORTO :
    • Port operators;
    • Concessionaires of organized ports;
    • Tenants of port facilities of public use;
    • Companies authorized to explore port facilities of mixed private use;
    • Concessionaires of railroad transportation services;
    • Dredging companies;
    • Professional Training Centers.
  • 2.2. REPORTO
    • Points of Attention :
    • Only goods expressly foresaw at the legislation (there is a list) can benefit from the tax suspensions, zero rate and exemptions granted by the REPORTO;
    • Only sales made directly to the REPORTO beneficiary can benefit from the tax incentives;
    • The PIS/COFINS/IPI/I.I. suspension is only converted to zero rate after five years of incorporation of the goods to the fixed assets of the beneficiary;
    • The REPORTO special regime ends in December 31 st , 2011.
  • 2.3. REPENEC
    • PIS, COFINS and IPI suspension (convertible to zero rate) on the following transactions:
    • Local purchases or imports of new machines, appliances, instruments, equipments and construction materials for usage or incorporation in works of infra-structrure;
    • Local purchases or imports of services destined to works of infra-structure;
    • Local rental of machines, appliances, instruments and equipments for usage in works of infra-structure.
  • 2.3. REPENEC
    • Admission to the REPENEC is allowed to legal entities, established at North, Northeast or Midwest Regions of Brazil, which owns publicly approved projects (by the Ministry of Mines and Energy) of infra-structure on the following areas:
    • Petrochemical;
    • Petroleum refining; and
    • Production of ammonia and urea from natural gas.
    • Taxation under the pretax profit system and fiscal regularity are pre-requisites for application for the REPENEC;
    • Tax incentives apply for 5 years as of admission or co-admission.
    (the supplier of civil construction and assembly services can apply for co-admission to the REPENEC)
  • 2.4. RETAERO
    • PIS, COFINS and IPI suspension (convertible to zero rate) on the following transactions:
    • Local purchases or imports of parts, tools, components, equipments, systems, subsystems, inputs and raw materials to be used in the aircraft (position 88.02 of NCM) industry;
    • Local purchases or imports of services regarding basic industrial technology, technology development and innovation, technical support and technology transfer;
    • Local rental of machines, appliances, instruments and equipments for production, repair and maintenance of aircrafts.
  • 2.4. RETAERO
    • Admission on the RETAERO is allowed to :
    • The legal entity that manufactures parts, tools, components, equipments, systems, subsystems, inputs and raw materials to be used in the maintenance, conservation, modernization, repair, revision, conversion and manufacturing of aircrafts (position 88.02 of NCM);
    • Such legal entity’s suppliers of goods or services (co-admission).
    • Approval Certificate for Enterprise (CHE) issued by ANAC, taxation under the pretax profit system and fiscal regularity certification are pre-requisites for application for the RETAERO.
  • 2.4. RETAERO
    • Points of Attention :
    • The aircraft industry already benefits from zero rate of PIS/COFINS and IPI suspension regarding local purchases and imports, which shall cease to apply upon admission on the RETAERO;
    • Zero rate of PIS and COFINS on the sales of airships (NCM 88.02) shall be maintained upon admission on the RETAERO;
    • Application to the RETAERO expires in 06/14/2015.
  • 2.5. RECOPA
    • PIS, COFINS and IPI suspension (convertible to zero rate) on the following transactions:
    • Local purchases or imports of new machines, appliances instruments and equipment, as well as civil construction materials to be used or incorporated in soccer stadiums which shall be used during the Confederation Cup FIFA 2013 and during the World Cup FIFA 2014;
    • Local purchases or imports of services destined to such soccer stadium construction works;
    • Local rental of machines, appliances, instruments and equipment for use in such soccer stadium construction works.
    • I.I. suspension also applies if the imported goods do not have a national similar;
    • States are authorized to grant ICMS exemption on imports and local purchases as well.
  • 2.5. RECOPA
    • Admission to the RECOPA is allowed to :
    • Legal entities which own project approved (by the Ministry of Sports) for the construction, amplification, reform or modernization of soccer stadiums which shall be used in the official matches of Confederation Cup FIFA 2013 and World Cup FIFA 2014; and
    • Such legal entities’ suppliers of civil construction services (co-admission).
    • Taxation under the pretax profit system, fiscal regularity and digital tax accounting (EFD) are pre-requisites for application for the RECOPA.
  • 2.6. Common Dispositions for all Regimes
    • The supply chain and “tax-value-creation” illustrations shown for the REIDI also apply to all other Regimes analyzed herein;
    • Cancelation of Admission of the Beneficiary of the Regime automatically extends to all co-admissions (suppliers) linked to said Beneficiary;
    • Admissions and co-admissions must be applied for and granted for each particular project;
    • If the goods and services subject to the tax incentives fail to reach their alleged destination, all suspended taxes shall be charged with fine and interests;
    • All projects subject to public approval within the Regime shall take into consideration the discount, from budget, of the taxes suspended or exempt.
  • 3. Other Relevant Tax Incentives
    • IT and ITC Companies – Double deduction (deduction + exclusion) of the costs with personnel dedicated to the development of software and many other incentives;
    • Accelerated discount of PIS and COFINS’s credits – Full credit of PIS and COFINS in twelve months as of the purchase of machines and equipment destined to the production of goods or to the rendering of services;
    • “ Green and Yellow” and “Integrated” Drawbacks – new customs regimes in which the drawback rules (suspension of taxes) apply even for inputs purchased within Brazil, as long as the final product is exported by the buyer;
    • PIS and COFINS suspension in the purchase or import of fuel oil to be used in coasting, sea and port support.
  • Thank You Rua Dr. Bacelar, 187, São Paulo / SP/ Brasil (55 11) 5083-3108 www.rsch.com.br E-mail: jr@rsch.com.br Skype: jose.scharlack Twitter: @rschlaw This presentation is also available at: www.direitoemvoga.com.br