Newletter Machado Associados - Taxation of Capital Gains Earned by Non-residents
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The Brazilian tax authority introduced changes to the taxation of capital gains earned by non-residents on the disposal of goods and rights located in Brazil. The changes establish a progressive tax rate on capital gains, ranging from 15% for gains up to 5 million Brazilian reals to 22.5% for gains over 30 million reals. The tax is due by the last business day of the month after the gain is ascertained. If disposal occurs over multiple years, gains are aggregated and prior taxes paid are deducted. For gains earned in 2017 and beyond, the progressive rates apply, replacing the previous flat 15% rate. Resident individuals are also taxed on capital gains using progressive rates since 2017.
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- 1. Newsletter Machado Associados Taxation of Capital Gains Earned by Non-Residents Normative Instruction of the Brazilian Federal Revenue Service (“IN RFB”) 1732/17, published in 29/8/17, introduced changes in IN RFB 1455/14, which previously established the levy of 15% Withholding Income Tax “(WHT”) on capital gains ascertained by legal entities domiciled abroad upon the disposal of goods and rights located in Brazil. IN RFB 1732/17 establishes the levy of Income Tax using progressive rates, which can be calculated based on the practical table below: Calculation Basis (BRL) Rate (%) Deductible Share (BRL) Up to 5,000,000.00 15% - From 5,000,000.01 up to 10,000,000.00 17,5% 125,000.00 From 10,000,000.01 up to 30,000,000.00 20% 375,000.00 Higher than 30,000,00.01 22,5% 1,125,000.00 IN RFB 1732/17 also provides that: (i) The tax shall be paid until the last business day of the month following the capital gain ascertainment; (ii) In case the disposal occurs in installments and the second transaction occurs until the end of the calendar year following the first, the capital gains ascertained as of the second operation shall be added to the gains earned on the previous transactions, deducting the amount of tax previously paid; and (iii) The 15% WHT rate previously provided applies for taxable events occurred until 31/12/16, i.e. the progressive rates apply as of 1/1/17. We remind that the levy of Income Tax using progressive rates on capital gains earned by Brazilian resident individuals was established by Law 13259/16 and entered into force as of 1/1/17. Since the publication of such Law, we understand that the progressive rates apply to capital gains earned by non-residents, regardless if they are individuals or legal entities, in light of the article 18 of Law 9249/95 (the capital gain earned by a non-resident shall be calculated and taxed in accordance with the rules applicable to Brazilian residents) and considering
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