MP 252 - BRAZILIAN TAX BREAKS FOR EXPORTERS

UNCLAS SECTION 01 OF 05 BRASILIA 001929

SIPDIS

STATE PASS USTR
NSC FOR CRONIN
AID FOR LAC/SA
TREASURY FOR OASIA - DAS LEE AND FPARODI
USDOC FOR 4332/ITA/MAC/WH/OLAC/JANDERSEN/ADRISCOLL/MWAR D
USDOC FOR 3134/ITA/USCS/OIO/WH/RD/DDEVITO/DANDERSON/EOL SON
BUENOS AIRES FOR HAARSAGER

E.O. 12958: N/A
TAGS: ETRD EINV EFIN EAGR BEXP
SUBJECT: MP 252 - BRAZILIAN TAX BREAKS FOR EXPORTERS

Ref: Brasilia 1682

1. As reported in reftel, on June 15 the Lula
administration issued Provisional Measure (MP) 252, which
enacts a series of changes in the tax system to benefit
multiple sectors. Some Brazilian analysts have questioned
the WTO-consistency of the tax benefits provided by the MP
to exporters. Specifically, the "RECAP" section (Chapter 2)
of the MP suspends certain taxes on the sales and
importation of capital goods for firms for which 80 percent
or more of their gross income is derived from exports. The
"REPES" section (Chapter 1) provides certain tax exemptions
for exporters of software and IT services.

2. Below is an unofficial translation of the RECAP and
REPES portions of MP 252. Agencies/offices which are
interested in obtaining the complete Portuguese version of
MP 252 should contact Bruce Williamson at
williamsonb@state.gov.

Begin Text.

"PROVISIONAL MEASURE No. 252, OF JUNE 15, 2005.

Institutes the Special Taxation Regime for the Information
Technology Exportation Platform - REPES, the Special Regime
for the Acquisition of Capital Goods by Exporting
Enterprises - RECAP and the Program for Digital Inclusion,
sets out provisions on fiscal incentives for technological
innovation, and makes other provisions.

THE PRESIDENT OF THE REPUBLIC, in due exercise of the
attributes conferred by Article 62 of the Constitution,
adopts the following Provisional Measure which shall have
force of law:

CHAPTER I

THE SPECIAL TAXATION REGIME FOR THE INFORMATION TECHNOLOGY
EXPORTATION PLATFORM - REPES

Art. 1. The Special Taxation Regime for the Information
Technology Exportation Platform is hereby instituted under
the terms and conditions established by the Federal Revenue
Secretariat.

SIPDIS

Art. 2. The beneficiary of REPES shall be a legally
constituted entity that exclusively exercises activities of
software development and information technology services,
and that upon opting for REPES, assumes a commitment to
export over 80 percent of their annual gross income of goods
and services.

Sole Paragraph: The provisions of this article do not apply
to legally constituted entities whose incomes, in total or
part, are subject to the Accumulative Incidence Regime of
contributions to PIS/PASEP and Contribution to Financing of
Social Security (COFINS).

Art. 3. For purposes of production control and proof that
the service contractor resides or lives overseas, the REPES
beneficiary shall utilize open code computer programs.

Paragraph 1: The Federal Revenue Secretariat will have on-
line access, through the Internet, to the information
covered in this chapter, for purposes of audit, with access
control through digital certification.

Paragraph 2: For purposes of recognition of the utilization
of the software and hardware infrastructure, the program
covered in this chapter will be registered by the Federal
Revenue Secretariat.

Art. 4. The requirement for contributions to PIS/PASEP -
Importation and COFINS-Importation levied on importation of
new goods destined for development of software and
information technology services inside the Country is
suspended, when imported directly from a REPES beneficiary
for incorporation into their fixed assets.

Paragraph 1: The suspension also applies to contributions
towards PIS/PASEP and COFINS payable on the sale of subject
goods on the domestic market, when acquired by a legally
constituted entity beneficiary of REPES.

Paragraph 2: Invoices relative to sales covered in
paragraph 1, must contain the statement "Sale made with the
suspension of PIS/PASEP and COFINS contribution
requirement", which must appear together with the
corresponding legal reference.

Paragraph 3: Based on this article, the percentage of
exports mentioned in Article 2 will be calculated
considering the average obtained, starting with the
beginning of goods acquired under the scope of REPES, for a
period of three years.

Paragraph 4: The period for initiation of the utilization
referred to in paragraph 3 shall be no greater than one year
after acquisition.

Art. 5. The requirement for contribution to PIS/PASEP and
COFINS incurred on the importation of services destined to
the development, in the country, of software and information
technology when imported directly by REPES beneficiaries,
will be suspended.

Paragraph 1: This suspension also applies to the
contribution of PIS/PASEP and COFINS incurred on the sale of
such services on the domestic market, when acquired by
legally constituted entities who are REPES beneficiaries.

Paragraph 2: Invoices relative to sales covered in
paragraph 1, must contain the statement "Sale made with the
suspension of PIS/PASEP and COFINS contribution
requirement", which must appear together with the
corresponding legal reference.

Art. 6. Suspensions covered in Articles 4 and 5 convert
into a zero percentage rate after a period of five years
from the date of the occurrence of the respective facts.

Art 7. Adherence to REPES is conditional on the legally
constituted entity's being up to date with regard to federal
taxes and contributions.

Art. 8. The legally constituted entity will have their
benefits cancelled:

I - in case of non-compliance with the export commitment
covered in Article 2;

II - whenever it is discovered that the beneficiary:
a) doesn't satisfy the conditions or doesn't comply with the
requirements for inclusion; or
b) stopped satisfying conditions or compliance with
requirements for inclusion; and

III - upon request.

Paragraph 1: Upon cancellation of inclusion in REPES, the
legally constituted entity will be subject to payment of
interest and fines, mora or oficio, counting from the date
of acquisition or registration of the Import Declaration,
whichever the case, referring to unpaid contributions due to
the suspension cited in Articles 4 and 5, as a contributor
on imported goods or as responsible on goods acquired on the
domestic market.

Paragraph 2: In the cases covered in clauses I and II, the
legally constituted entity excluded from REPES, can only
rejoin after a period of two years from the date of
cancellation.

Art. 9. Transfer of property or cessation of use for any
reason of the goods, imported or acquired on the domestic
market, as per this chapter or paragraph 1 of Article 4,
before complying with the provisions in clause 3 of the same
Article, should be preceded by collection of interest and
fines by the REPES beneficiary, mora or oficio, as per
paragraph 1 of Article 8.

Art. 10. As per Article 9, if the beneficiary transfers the
property before two years have passed, contributions will
also be owed.

Art. 11. Adherence to REPES by a legally constituted entity
who opted for the Integrated System of Payment of Taxes and
Contributions for Microbusinesses and Small Businesses -
SIMPLES, is prohibited.

Art. 12. Goods and services benefiting from the suspension
defined in Articles 4 and 5 will be listed in regulation.


CHAPTER II

THE SPECIAL REGIME FOR THE ACQUISITION OF CAPITAL GOODS BY
EXPORTING ENTERPRISES - RECAP

Art. 13. The Special Regime for The Acquisition of Capital
Goods by Exporting Enterprises - RECAP is hereby instituted
in compliance with the terms and conditions established by
the Federal Revenue Secretariat.

Art. 14. The beneficiary of the RECAP shall be a legally
constituted entity which predominantly exports,
characterized as such by having had gross income originating
from exportation activities equal to or superior to 80
percent of its overall gross income originating from the
sale of goods and services, in the calendar year preceding
its adherence to the RECAP, and which commits itself to
maintain this percentage for a period of two calendar years.

Paragraph 1: A legally constituted entity initiating
activities or which did not attain the percentage of
exportation required by the heading paragraph of this
Article may qualify for the RECAP provided that it makes a
commitment to register a gross income originating from
exportation abroad, of at least 80 percent of its overall
gross income from the sale of goods and services, for a
period of three calendar years.

Paragraph 2: The provisions of this article shall not be
applicable to those legally constituted entities whose
incomes are, partly or wholly, subject to the Accumulative
Incidence Regime for PIS/PASEP and COFINS Contributions.

Art. 15. The requirement for PIS/PASEP-Importation and
COFINS-Importation Contributions payable on the importation
of new machines, apparatus, instruments and equipment as
listed in the regulations, is hereby suspended when the same
are imported directly by the beneficiary of the RECAP, to be
incorporated as non-liquid assets.

Paragraph 1: The suspension referred to in the heading
paragraph of this article shall also be applicable to
PIS/PASEP and COFINS Contributions payable on the sale of
such goods on the internal market when the same have been
acquired by a legally constituted entity, beneficiary of the
RECAP.

Paragraph 2: The benefit of the suspension provided for in
the present article may be made use of for a period of three
years counted from the date of adherence to the RECAP.

Paragraph 3: The percentage of exportation referred to in
the heading paragraph and in paragraph 1 of Article 14 shall
be determined by considering the average value obtained
after initiation of the utilization of the goods acquired in
the ambit of the RECAP over a period of:

I - two years, in the case of the heading paragraph of the
present article;
II - three years, in the case of paragraph 1 of Article 14.

Paragraph 4: The period of time for initiating the
utilization referred to in paragraph 3 shall not be longer
than three years.

Paragraph 5: That legally constituted entity which
incorporates goods in a different way to that foreseen in
the heading paragraph, resells goods before the period
referred to in sub-headings I or II of paragraph 3 or fails
to comply with other provisions, shall be obliged to pay
fine and interest, calculated from the date of acquisition,
and referring to contributions not made due to the
suspension referred to in the present article, in the role
of:

I - taxpayer in relation to the PIS/PASEP-Importation and
the COFINS-Importation Contributions; or
II - legally responsible party in relation to PIS/PASEP and
COFINS Contributions.

Paragraph 6: In the Receipts for the Sales referred to in
paragraph 1, the expression "Sale made with the Suspension
of PIS/PASEP and COFINS Contribution Requirement" must
appear together with the identification of the respective
legal provisions.

Paragraph 7: The suspension provided for in the present
Article shall be transformed into a zero percentage rate
once the conditions referred to in the heading paragraph,
and paragraph 1 of Article 14, have been met.

Paragraph 8: The legally constituted entity that fulfills
the commitments set out in paragraph 1 of Article 14 may, in
compliance with the same conditions established therein,
make use of the benefit of suspension set out in Article 40
of Law No. 10.865 dated April 30, 2004.

Art. 16. Adherence to the RECAP is conditional on the
legally constituted entity's being in a regular fiscal
situation as regards federal taxes and contributions.

(Chapters 3-14)

Brasilia, June 15, 2005, 184th year of Independence and
117th of the Republic.

LUIZ INACIO LULA DA SILVA
Antonio Palocci Filho
Luiz Fernando Furlan
This text shall not substitute that published in the
Official Gazette of June 16, 2005"

End text

MANGANIELLO