Nordic investors face a lot of hurdles when they decide to invest in Brazil. Their companies are subject to various taxes at federal, state and municipal level. Furthermore, a local accounting team may be organized internally or outsourced to a third company. Regardless of their choice, Nordic groups should remain able to oversee their booking activities in collaboration with a controller from the parent company, always interacting with a local tax advisor.
This preventive work will allow the company, whenever controlled, to be better prepared to answer a request from public authorities or even defend itself in case of tax assessment. Generally speaking, a company should have a 30-day deadline to present all documents and its defense after having received the tax notice from public administration.
To illustrate this situation, we recall the today so-called tax war among the Brazilian Member States which strive to offer better conditions for companies investing in their respective jurisdictions. Their Treasure Secretariat, which is in charge of the ICMS tax, is used to operate a strong tax control over rental, free lease and equipment or property transfer. Many Nordic players in place deliver equipment to their clients and also supply additional services, without due contractual background, sometimes lacking appropriate agreements or their amendments, or even corresponding invoices/delivery notes.
The State of São Paulo, for instance, is used to charging an 18% rate in case of property transfer. In many cases, however, it so happens that companies did not sell the equipment, but only rented them to their customers, combined with other services they may charge for as well. In that case, the end user of the equipment in question does not earn property but only possession thereof. The latter does not justify levying the tax burden to the lessor company, provided that documental support may supply evidence of return of this equipment.
Last but not least, Nordic companies should also differentiate very clearly in their contracts the structure of different transactions like exports, renting or free lease and even simple exposition. All these similar but yet different transactions, if well structured and documented, may save a lot of headache for Nordic investors.
Renato Pacheco e Silva Bacellar Neto is partner at Pacheco Neto Sanden Teisseire Law Firm.