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Brazilian businessmen that have branches abroad are legally able to be exempted from taxes when their subsidized pass profits registered in countries that have treaties to avoid double taxation with Brazil. Moreover, there are also positive signs of the Board of Tax Appeals (CARF) to depart from this incidence.

According to experts, the understanding of the Federal Revenue is that the tax on earnings must be levied on those earnings, based on what is determined by the Federal Constitution, but in all agreements made with other countries, there is an article (number seven) that prevents such taxation. "Brazil is unpopular abroad. The country is known as the one who does not respect treaties. However, CARF recently decided rejecting the levy of tax on earnings of international origin. Thus, there is an indication that the board believes that constitutional rules hurt international treaties, "explains Marco Antonio Chazaine of Viseu Advogados.

Another positive manifestation pointed by lawyer and that was recently released, refers to the decision of the Second Chamber of the Superior Court of Justice (STJ) on appointment to a particular resource (number 1.161.467) that discussed whether remittances for payment of services rendered without transfer of technology to a country that Brazil has treated should be construed as income or profit of the service providers. As the understanding was that it could be considered as a profit,  there is no tax incidence in Brazil.

In the decision, the Minister Castro Meira said in his vote that the Article 7 of the treaty, when mentions profit, should be understood as operating and not as real, which would only be charged in the country where there was the won.

"It means that only in the base of the litigation, companies are able to ensure their rights. There is still too much lack of interpretation of the Federal Revenue," says Chazaine.

New obligation

Among the overseas operations, there is another criticism of the Viseu attorney's office, and that will be one of the topics of discussion during the banking event to be held today in Sao Paulo, it refers to the entry into force earlier this month of the Integrated Trade in Services and Intangibles Other Operations that Produce Changes In Equity (SISCOSERV), developed by the Ministry of Development, Industry and Foreign Trade (MDIC) and the Brazilian Federal Revenue. "To answer the normative instruction [number 1,277 of 2012], companies have to generate the information manually, which generates too much work," said Marco Antonio Chazaine.

According to the ministry, the SISCOSERV will measure the export and import of services for Brazilian and foreign companies. And it will allow disaggregate the information which is already available. Like Siscomex, it shows how much soybean oil or airplanes, for example, Brazil has sold and to which countries, the new system will tell the destination of the projects sold by architecture firms and construction companies in Brazil.

On the date of entry into operation of the system (August 1), the President of MDIC, Fernando Pimentel said that "the information generated by SISCOSERV will allow actions even more effective stimulus to exports," he said, adding that with the detailing these numbers, the federal government expects to develop public policies, such as offering lower interest credit to entrepreneurs, to balance the scales in the industry.

Last year, trade in services with the overseas topped US$ 109 billion (US$ 73 billion in exports and US$ 36 billion in imports). The deficit was US$ 37 billion.

The lawyer at the international area of Martinelli Advocacia Empersarial, Leonardo Vellinho Vieira Simões says that with this detailing, the government will be able to map the services which are more and less exported by Brazil. "It is still unclear what the public policy will be. But, with this detailing, there will be a tool for in the case of a specific service volume is small, the government can create incentives or invest in more education for this sector," the expert believes.

According to him the forced will be gradually chosen. At first, they are services are construction, maintenance, repair and installation services and postal and express delivery - provided or purchased by individuals or corporations. Until October 2013, more sectors related to services within the trade will be chosen.

The fine for those who fail to comply is R$ 5,000.00 per month of delay in sending information and 5% of the transaction value with the overseas in the case of missing information, inaccurate or incomplete. "It is natural that with the advent of an inedited legal norm, issues related to its application in the cases, might arise. Meanwhile, taxpayers who already operate in foreign trade must be prepared to meet the new regulatory requirement," warns Simões.

Source: DCI – SP
Text: Fernanda Bompan
Version: Grazielle Segeti



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