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Alessandra Gomensoro

Alessandra Gomensoro
55 21 3231 8222 agomensoro@mattosfilho.com.br Rio de Janeiro

Areas of expertise

Experience

Alessandra advises and represents both Brazilian and foreign clients across various sectors (including energy, oil & gas, and retail) in administrative and judicial tax proceedings at federal, state and municipal levels, as well as in social security and customs disputes. She assists with administrative lawsuits concerning procedural issues, issuing tax compliance certificates, tax recovery program matters and tax litigation. Alessandra also works with tax leniency programs and represents clients with tax legislation and regulation issues before government agencies. She is the author of numerous publications in the tax law field.

Education

Bachelor of Laws – Pontifícia Universidade Católica do Rio de Janeiro (PUC-RJ);

Master of Laws (LL.M.) – University of Chicago.

Recognitions

Euromoney Expert Guides – Women in Business Law (2020, 2021)

International Tax Review – Tax Controversy (2016-2022); Women in Tax Leader (2017-2022)

LACCA Approved – Tax (2015-2022)

Latin Lawyer 250 – Tax (2020-2021)

Who’s Who Legal Brazil – Corporate Tax (2018-2021)

Who’s Who Legal Global – Corporate Tax (2018-2020)

Único. The Mattos Filho news portal

Authored publications

Mattos Filho in the media

With Alessandra Gomensoro

Customs Administration regulates simplified procedures for the migration of assets from Repetro to Repetro-Sped

The General Coordination of Customs Administration (“Coana”) enacted, on June 26, 2018, Ordinance No. 40/18, regulating simplified procedures for the migration of assets from Repetro to Repetro-Sped. 

As detailed in our memorandum to clients of January 10, 2018, Normative Ruling No. 1,781/17 introduced a regime called Repetro-Sped and indicated that taxpayers could migrate assets to this new regime by means of a simplified procedure to be further defined by Coana. 

With the enactment of Ordinance No. 40/18, companies which are in compliance with all legal requirements and which are qualified for Repetro-Sped may initiate the migration of their assets originally brought into Brazil under Repetro to this new regime.

Below, we summarize the main regulations introduced by Ordinance No. 40/18.

  • Effectiveness. Ordinance No. 40/18 came into effect on June 26, 2017 and its simplified procedures apply to the migration of assets that are carried out prior to December 31, 2018. For migration of assets after that day, the standard procedures applicable to the transfer of assets between customs regimes will be applicable.

  • Application. The simplified procedure must occur through an application form called “RCR-Migração”, which must be filed with the tax authorities. Further to such filing, companies must comply with certain procedures, such as registering a new Import Declaration and filing an additional form canceling the prior Repetro regime.

  • Assets covered by the simplified procedure. In the RCR-Migração form the main assets imported by companies in the O&G industry (e.g. vessels and oil rigs) and directly related ancillary assets may be included, as well as inventory items relating to the maintenance of the vessel or oil rig or for the use of the crew and passengers.

Ordinance No. 40/18 permits incidental assets and inventory items to be automatically migrated to Repetro-Sped after the customs clearance of the main asset. However, third party assets that are on board a vessel or oil rig are not covered by the migration of the main asset and must be migrated by their respective owners.

The simplified procedure may include assets that are currently subject to an ongoing request for Repetro extension or beneficiary substitution. In such cases, however, an authorization to migrate assets to Repetro-Sped does not indicate approval of such requests or prevent the tax authorities from carrying out an inspection as to the correct application of the prior regime.

During the analysis of the request for the migration to Repetro-Sped, taxpayers may use the assets for the purposes for which they were imported under Repetro.

  • Assets of less than US$ 25.000,00. Assets having a value of less than US$ 25,000.00 may not be migrated to the temporary importation regime with complete relief from federal taxes (although they may be migrated to the temporary importation regime with federal tax relief proportional to the time the assets remain in Brazil or be migrated to the permanent importation regime). For such purposes, the value of the main assets and their respective ancillary assets, as well as freight and insurance costs, are taken into consideration. 

  • Registration of the Import Declaration. For the migration of assets to the temporary importation regime with relief from federal taxes, the new Import Declaration must be registered by: (i) the O&G company (operator of the block); or by (ii) the service provider for the account and at the order of the operator.

  • Reject of migration request. If the tax authorities reject the request for migration of assets to Repetro-Sped, taxpayers will be required to extinguish their Repetro regime within 30 days from the rejection, unless the remaining period of its Repetro regime is longer. In the case of rejection, the tax authorities may charge taxes proportional to the period the assets remain in Brazil if the period of the Repetro regime expires before the assets are re-exported.

Areas of expertise

Ajuste Sinief No. 3/18: new tax treatment for transactions with NG through pipelines

CONFAZ published on April 4, 2018, Ajuste Sinief No. 3/18 , introducing a different ICMS treatment and invoicing obligations for transactions and transportation of Natural Gas (“NG”) through pipelines. 

Such treatment was one of the main topics addressed during the “Gas to Grow” project and a step towards the development of the NG market in Brazil as a competitive and multi-player industry, considering Petrobras’ recent divestment program that reduced its role in the pipeline network. 

In general terms, this different treatment is based on the contractual flow of NG obligations (as opposed to the physical flow, which has generally been the relevant event for the application of ICMS and issuance of invoices) and on the adoption of an electronic system, the so called “Information System”, for the control of information related to the movement (entrance and delivery) of NG.

Ajuste Sinief came into force on the date of its publication, but it will become effective on the first day of the month subsequent to the publication of an “Ato Cotepe ICMS”, which will approve and regulate the Information System.

GENERAL RULES 

NG transactions and NG transportation services will be taxed based on their points of entry and delivery and their respective contractual values; the physical flow of the NG will be disregarded for tax purposes.


Invoices may be issued monthly up to the 5th business day of the month subsequent to the triggering event (this invoicing procedure does not interfere with the relevant date set forth in the legislation for the collection of ICMS).


Invoices must consider the volume of NG measured at the entry and delivery points and expressed by energy units at the request of suppliers and recipients and confirmed by transportation providers, as indicated in the relevant contract.


Different rules apply for ancillary obligations, particularly regarding the issuance and completion of electronic invoices, which depend on whether the party contracting the NG transportation service is the supplier or the recipient and whether it involves one or more providers of NG transportation services and interconnection of pipelines.


Suppliers, recipients and transportation service providers must verify if the transactions at the entry and delivery points are in accordance with the provisions in Ajuste Sinief and are jointly liable for potential ICMS due in respect of invoices not received or invoices received but in breach of the rules established in Ajuste Sinief.


This different tax treatment is limited to transactions and services executed by suppliers, recipients, and transportation service providers which operate through pipelines, accredited and listed in a specific Ato Cotepe ICMS, and located in the following states: Alagoas, Amazonas, Bahia, Mato Grosso, Mato Grosso do Sul, Minas Gerais, Paraíba, Paraná, Pernambuco, Rio de Janeiro, Rio Grande do Norte, Rio Grande do Sul, Santa Catarina, São Paulo and Sergipe.


In order to benefit from the tax treatment established in Ajuste Sinief, the taxpayer must submit certain information through the Information System. Up to December 31, 2018, which was defined as the transitional period, preceding the creation of the Information System, users of pipelines must submit monthly reports, in accordance with rules that will be defined in Ato Cotepe ICMS. However, for contracts signed before Ajuste Sinief was published and which are still valid, the volume of gas must be measured based on the measurement unit contractually agreed. 


STORAGE OF NG IN PIPELINES 


The pipeline stock corresponds to the sum of the minimum volume required to start the movement of NG and the difference between the volume received and delivered in the transportation facility within a certain period.
Such minimum volume of NG may be delivered by the party contracting the transportation service (in which case invoices must be issued, without ICMS, for the delivery and return of NG), or acquired by the transportation services provider (in which case the NG supplier must issue an electronic invoice in accordance with the relevant legislation).
EXTRAORDINARY LOSSES

Extraordinary losses that release NG into the air due to damage, accidents or other problems in the transportation facility and which are a result of actions or omissions of the transportation service provider create certain obligations of the transportation service provider, which must: (i) ascertain the losses each month; (ii) discriminate losses proportionally to each contractor of the transportation service, having regard to the contractual terms and conditions; and (iii) by the 5th business day of the month following the event, issue to each party contracting the transportation services, invoices without ICMS and containing the information required by Ajuste Sinief. 
The contracting party to the transportation services must issue, by the 5th business day of the second month following the event which caused the loss, invoices containing the indication of the ICMS due, pursuant to specific information required by Ajuste Sinief.
FORCE MAJEURE AND ACTS OF GOD 

For losses resulting from events not within the control of the parties, the position is the same as that relating to extraordinary losses (above), in that the transportation service provider must: (i) ascertain the losses each month; (ii) discriminate losses proportionately to each contractor of the transportation service, having regard to the contractual terms and conditions; and (iii) by the 5th business day subsequent to the event, issue to each party contracting the transportation services, invoices without ICMS and containing the information required by Ajuste Sinief. 
The contracting party to the pipeline transportation services, must issue, by the 5th business day of the second month following the event, invoices without ICMS and write-off the respective ICMS tax credit.

Areas of expertise

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