International Tax Review is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

New rules for taxation of dividends in Brazil?

mattos-filho.jpg

Law 11,638 was enacted in 2007 with the objective of adapting the Brazilian accounting rules (former regime) to the International Financial Reporting Standards (IFRS), representing a clear upgrade for investors who were able to analyse Brazilian corporations with the most-commonly adopted global system.

The tax implications of this adjustment caused controversy. The solution was a Transitional Tax Regime (RTT), which had the premise that the IFRS regime should be neutral, that is, the new rules are neither meant to create new taxation nor to grant benefits in respect to corporate taxes, including corporate income taxes IRPJ and CSLL, and tax on revenues, PIS and COFINS.

Generally, RTT states that Brazilian corporations should follow the former regime for tax purposes, disregarding the accounting changes that modify the recognition criteria of revenues, costs and expenses. Even though RTT was foreseen as provisional, new legislation to harmonise the tax rules with the IFRS regime has not been enacted.

Additionally, in September 2013, the Normative 1,397 was issued, indicating that the former regime will remain in effect for tax purposes, and also imposing tax rules that go beyond the limits of the legislation for the taxation of dividends.

As dividends are exempt from income tax, Brazilian corporations have distributed their results to investors taking into account their financial statements prepared under the IFRS regime.

Even though the tax rules do not require dividend distributions calculated based on the former regime, the Normative adopted the position that the exemption applies only to the extent that the dividends were derived from results assessed upon the former regime. With this approach, any excess of dividends – even if derived from profits assessed according to the IFRS regime – would be taxed as follows:

· Income tax up to 27.5% for Brazilian individuals;

· IRPJ and CSLL of 34% for Brazilian corporations; and

· Income tax of 15% for non-residents (or 25% for tax havens).

As this approach was not expected after so many years, there was an immediate reaction from several stakeholders, such as corporations, investors, advisers and industry associations, arguing that the Normative is unlawful and should not impose new taxation.

As a result, even though the Normative is still in force (potentially generating liabilities for dividends not taxed), it seems that the government will step back and will impose any taxation on dividends only after introducing a new law, which is expected before the end of this year.

By principal Tax Disputes correspondent for Brazil, Andrea Bazzo Lauletta of Mattos Filho Advogados.

more across site & bottom lb ros

More from across our site

An intense period of lobbying and persuasion is under way as the UN secretary-general’s report on the future of international tax cooperation begins to take shape. Ralph Cunningham reports.
Fresh details of the European Commission’s state aid case against Amazon emerge, while a pension fund is suing Amgen over its tax dispute with the Internal Revenue Service.
The OECD’s rules may be impossible for businesses to manage, according to tax experts from companies including Shell.
The UK government is now committed to replacing the ‘super-deduction’ with a 100% capital allowances regime to offset the impact of the corporate tax rise to 25%.
Corporate tax is set to rise in the UK for the first time in decades, but the headline rate remains historically low despite what many observers think.
President Joe Biden’s nominee is set to be confirmed as IRS commissioner for a five-year term.
British companies are waiting to hear the details of what will replace the 130% ‘super-deduction’ next week, while Spain considers stopping a major infrastructure company moving to the Netherlands.
President Joe Biden wants to raise corporate tax and impose a higher stock buyback tax on US businesses, but his budget proposal faces insurmountable obstacles in Congress, writes Ralph Cunningham.
EY is still negotiating the terms of the plan to split its audit and consulting functions, but the future of tax services is reportedly a sticking point.
Country-by-country reporting is the best option for safe harbour provisions under the global anti-base erosion rules, according to tax directors at companies including Standard Chartered Bank and Pernod Ricard.