Brazil: Tax Treaty Roundtable with Receita Federal

UNCLAS SECTION 01 OF 02 BRASILIA 000824 SENSITIVE SIPDIS STATE PASS USTR FOR DUCKWORTH TREASURY FOR OASIA HOEK AND TRAN USDOC FOR 4332/ITA/MAC/WH/OLAC/ADRISCOLL E.0. 12958: N/A TAGS: EFIN ECON EINV BR SUBJECT: Brazil: Tax Treaty Roundtable with Receita Federal Refs: a) 4/11/08 e-mail Erath/NSC/Treas/DOS/DOC re April 10 tax and investment lunch (U)1. SUMMARY: Treasury DAS Brian O'Neill's roundtable, hosted by the Ambassador, with the head of Receita Federal Jorge Rachid, Senator Tasso Jereissati, Deputy Antonio Palocci, CEO Forum chair Josue Gomes da Silva, Finance Ministry Chief of Staff Luis Malin, Casa Civil International Affairs advisor Carlos Teixeira, and Receita Federal's head of international tax affairs Marcus Pontes made progress in revitalizing Brazilian government interest and willingness to negotiate substantively on a bilateral tax treaty. Congressional participants urged both sides to look for creative solutions and possible language to bridge differences. The CEO Forum chair strongly underlined the interest of the Brazilian business community in concluding a BTT that would decrease the tax burden and increase the incentive to invest in the United States. Rachid and congressional representatives agreed that the key political issues that must be resolved are tax sparing, information exchange and limitation on benefits. Tax sparing, participants indicated, is likely to pose the greatest political challenge to resolve. Rachid agreed that the negotiating team would engage substantively during the June 10-12 session in Washington to try to find ways to address creatively both sides' needs. END SUMMARY TAX SPARING (U) 2. While the technical economic impact of inclusion or non-inclusion of a tax sparing provision may be insignificant in the present day, Rachid emphasized that GOB believes that if Brazil has to give up tax revenue as a consequence of tax incentives, the United States must also forgo this revenue to be fair. DAS O'Neill noted that the US Senate has historically and currently objected categorically to providing in essence a subsidy for US investment abroad that is tied to incentives a foreign country may choose to offer. Jereissati and Palocci agreed that a treaty that explicitly excludes tax sparing would be extremely difficult to ratify in the Brazilian Congress. In a separate O'Neill meeting with Senator Francisco Dornelles, the acknowledged authority within the Brazilian Congress on tax issues who enjoys strong political influence in tax matters, the Senator underlined that a tax sparing provision is 
critical to his acceptance of any BTT. Both Rachid and Dornelles emphasized the strong desire to avoid re-negotiating existing tax sparing provisions in tax treaties with European countries, Japan and Canada. These treaties contain MFN obligations and these countries have already indicated strong interest in eliminating their tax sparing provisions, according to Rachid and Dornelles (the latter corroborated by post conversations with these embassies in Brazil). Jereissati, Palocci and Gomes urged negotiators to explore creative drafting solutions and Rachid indicated willingness to explore further in the bilateral tax negotiations in Washington June 10-12. All participants acknowledged that tax sparing may ultimately prove the most politically challenging issue to resolve. INFORMATION EXCHANGE (U) 3. Jereissati and Palocci strongly reiterated the consensus of the April 10 congressional lunch (ref A). They and other legislators could conceivably accept creative solutions to exchange of information where no domestic tax interest exists, although a treaty that explicitly stated such a requirement would have great difficulty achieving ratification in Congress. However, the Brazilian Congress would oppose any agreement that would permit Receita Federal to access and exchange any specific types of information the agency does not currently have the right to access. Receita Federal and the Finance Chief of Staff indicated vigorous agreement with this position, being well aware of the political sensitivities surrounding privacy concerns. On the TIEA, Rachid underlined the importance GOB attaches to ratification of agreement by the Brazilian Congress. The Ambassador agreed that, while the TIEA is not the same as a full BTT, it is an important step and USG hopes the agreement will be ratified soon. (NOTE: The TIEA is still in the House under Committee consideration. On 5/29, the Tax and Finance Committee raporteur issued a favorable recommendation to the Committee, which must now vote to move the legislation to the plenary for a vote. END NOTE). In the separate one-on-one meeting with Senator Dornelles, he indicated that he did not believe that Rachid had the authority to sign the TIEA on behalf of the Brazilian government and has requested a legal opinion from MRE. Dornelles also noted that various lawyers and lobbyists for the financial sector have raised objections with him regarding the substantive provisions of the TIEA. He planned to study the merits of those BRASILIA 00000824 002 OF 002 objections, and had asked for constitutional lawyers' opinions, before taking a position. LIMITATION ON BENEFITS (U) 4. Rachid indicated that a provision on limitation on benefits will need to be carefully drafted. While Brazil wants to explore text development that will address the problems of treaty shopping/free-riders, there is some concern that a provision that is too broadly drafted could unwittingly capture Brazilian companies that should legitimately benefit from the tax treaty. OTHER ISSUES (U) 5. The roundtable did not substantively address other issues such as services, transfer pricing, taxing rights or arbitration. Receita Federal confirmed Rachid had sent a letter June 2 to the Ambassador responding to his May 12 request for Brazilian feedback on GOB priorities and redlines for a BTT (response forwarded electronically to Treasury June 5). In DAS O'Neill's meeting with Dornelles, in addition to issues discussed above, transfer pricing was discussed. Transfer pricing was the one area where Dornelles expressed enthusiasm, saying the US was the recognized expert in this area. He encouraged the US to provide technical assistance to Receita Federal to help the agency move toward OECD standards. "I give my full support for any kind of technical assistance or administrative help; that would be extremely useful for Brazil. You have my full support on transfer pricing - my problem is tax sparing." Dornelles indicated he planned to ask his friend and CEO Forum member Jorge Gerdau to provide a list of ten points explaining why the Brazilian business community wants a BTT and asked Treasury to facilitate obtaining a similar document from the US side of the Forum (finatt is following up on this request). (SBU) 6. On the margins of the meeting, Finance quietly indicated that garnering internal agreement for Rachid's participation in the roundtable had been extremely challenging. After the March negotiating session in Brasilia, Finance had decided at the highest level to suspend engagement on tax treaty negotiations with the United States and had intended the Washington discussions in June to be pro forma and final. After much internal high-level discussion, Rachid was given permission to attend the roundtable provided Finance accompanied. The concrete, substantive discussion at the roundtable, including the obvious congressional interest and the impassioned support vocalized by the CEO Forum Chair, had clearly revitalized GOB interest in engaging substantively with the US, per Finance. Finance informed the Ambassador that President Lula has received on-going updates regarding the BTT and is fully aware of the issues. COMMENT (SBU) 7. The roundtable's influential participants provided an opportunity to underline congressional and business interest in moving forward with substantive BTT negotiations. Rachid engaged concretely on the issues discussed, highlighting both political challenges and his own willingness to engage. He signaled that if the United States was prepared to demonstrate some flexibility on the politically challenging areas, an agreement could be possible. He indicated that the Brazilian delegation will be prepared to engage substantively in technical discussions in Washington June 10-12. Post believes this roundtable was key in stimulating GOB substantive engagement and interest in concluding a bilateral tax treaty with the United States. Intensified pressure from the Brazilian business community and high-level political engagement will continue to be required to ensure these negotiations move forward productively. END COMMENT SOBEL