|Philippe Jeffrey||Mark Conomy|
By way of background, since August 2012, Brazilian individuals, legal entities and other entities without legal personality have been required to provide information to the Ministry for Development, Industry, and International Trade in relation to transactions carried out with non-residents involving services, intangibles and other operations that produce changes to the Brazilian entity's net worth.
In response to continuing uncertainty over whether certain transactions should be registered in the SISCOSERV, the RFB have issued a number of rulings responding to formal consultations made by taxpayers.
On February 25 2015, the RFB issued Tax Ruling No. 20/2015 in relation to whether salary and allowance payments made by Brazilian entities to their employees sent to work abroad should be registered in the SISCOSERV. Broadly, registration in the SISCOSERV will be required where the transaction is realised between a resident or entity/individual domiciled in Brazil and a resident or entity/individual domiciled abroad. Brazilian workers abroad are generally considered residents in Brazil during the first 12 consecutive months of absence from the country. After that (that is, from the 13th consecutive month of absence from Brazil), the worker should be considered a non-resident for Brazilian tax purposes and therefore any payments made to this worker should be registered with SISCOSERV. The above treatment will also apply where the payments to the worker are made through intermediary agencies abroad.
On February 25 2015, the RFB issued Tax Ruling No. 21/2015, providing guidance on registration requirements for payments made by Brazilian entities in relation to cost sharing arrangements, where the activity is classified under the Nomenclature of Services (NBS). The NBS sets out a list of codes in order to classify the activities for SISCOSERV purposes (some codes being quite specific while others are quite broad). Pursuant to the ruling, the RFB considers that where a foreign group entity acquires services from a third party, which are subsequently recharged to the Brazilian entity, information in relation to the payments made by the Brazilian entity to the foreign group entity should be registered in the SISCOSERV. Further, where the foreign group entity uses its own administrative structure to provide benefits to the group (including the Brazilian entity), information relating to the payments made by the Brazilian entity to the foreign group entity in relation to the provision of these services should be registered, on the basis that such transactions produce changes to the Brazilian entity's net worth.
On February 26 2015, the RFB issued Tax Ruling No. 32/2015 in relation to whether payments made by Brazilian entities with a 'commercial presence' abroad are obliged to register in the SISCOSERV, information related to the acquisition of services, intangibles and other transactions producing a change in net worth. Under the General Agreement on Trade in Services (a treaty to which Brazil is a signatory) the expression 'commercial presence' includes representative offices of the Brazilian companies, located abroad. Therefore, where representative offices of Brazilian entities located abroad make acquisitions of services, intangibles or enter into other operations resulting in a change to the net equity, the relevant information should be registered in the SISCOSERV.
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