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Mariel Barclay interviews Favio Mifano, Partner at Mattos Filho.
A guide to Brazil’s tax maze

Taxes in Brazil have always been too many and too complicated. Companies setting up business there must be ready to spend 2,600 hours a year to prepare and pay for them. This might come as a shock for European treasurers for whom 176 hours is sufficient or even for Latin Americans who spend 341 hours on average. However, President Temer´s new administration is committed to open the country up to investors, implementing more business friendly policies. Is a tax reform on the cards? Will the Government be able to deal with the political challenge that this entails? What are the key issues to take into account to optimise tax in Brazil? In this interview Flavio Mifano, a Partner at Mattos Filho, alerts treasurers on how to operate in this complex and changing environment.

Why is Brazil’s tax system so complicated?
It is a multifactor issue. It is safe to say that one of these factors is the high number of taxes and even a higher package of ancillary obligations that taxpayers must comply with, before three levels of tax authorities (municipal, state and federal). Research published by the World Bank in 2013 showed that a company might spend around 2,600 hours per year on complying with ancillary obligations. Another piece of research showed a much lower, but still a high amount of annual time of 586.4 hours on complying with ancillary obligation. Another relevant factor is that legislation changes have been piling up for many years now with no consideration for cohesion or simplicity. This makes it difficult even for full time tax lawyers to be familiar and up to date with the ever changing rules and interpretations.

Do you expect any simplification in the near future? 
Although there are several proposals for reforming the tax system, Brazil is facing a critical political phase, so there are other issues that are likely to be prioritised in the short term. Yet, I am particularly optimistic about a tax reform focusing on the simplification of the current rules in the next few years. 

What are the main tax considerations when setting up a business in Brazil?
It is hard to summarise main tax considerations given the afore mentioned complexity of our system. However, if I had to point out some, I would say that the industrial, retail and services sectors should review carefully the municipal and state legislation that address local taxes, since their regulation can vary a lot, affecting significantly the financial model to be put in place.

One largely neglected, but very important issue is the accounting positions that can be taken under the IFRS, based on subjective interpretations. Brazil accounting rules migrated to IFRS rules a few years ago, and the new standard can be rather subjective in certain areas and judgment from the accountants is commonly required in applying one rule, instead of another. New tax rules recently issued to deal with tax implications of the migration to IFRS, urge for further guidance from tax authorities and certain accounting positions may generate adverse tax impacts. Uncertain accounting positions should be reviewed beforehand from a tax perspective to avoid surprises. As to the investment structure to be used, one should assess debt funding versus equity funding, both from the perspective of the tax impacts upon the investment returns and potential tax shelter at operational level.

What are the most common mistakes that companies and investors make?
Most common mistakes link to the complexity of the legislation already addressed. Therefore, it is fairly common to see investors opting for structures that are far from being the most efficient, generating tax leakages that could be avoided with a proper tax analysis. Some structures can be adapted after implementation with no relevant tax impact, but in a number of cases, structural changes may trigger adverse tax impacts. 

Do any sectors benefit from tax exemptions?
Almost every sector has tax exemptions and special tax regimes available. I could point out the technological sector (from industry to retail), including software development, infrastructure companies (oil, gas, electric energy, etc.) and the automotive sector. As I said before, local legislation (state and municipal) have the most significant tax exemptions and they usually vary according to the local economy’s profile. 

What are your top three tips when doing business in Brazil (with regards to tax)?
I would say:

1. Review carefully the legislation and the different structures available to improve the tax model.
2. Periodically review tax procedures with local advisors to prevent negligence regarding any legislation alterations and/or to utilise any potential new tax relief.
3. Periodically review in detail the accounting positions adopted in areas that require judgment along with potential tax implications.

What are the most efficient tax-efficient alternatives for raising funds for companies in Brazil and in particular for those that do not have access to the capital markets?

There are several fund-raising alternatives that Brazilian companies may resort to, even out of the capital markets. A commonly used structure involves the issuance of securities such as debentures – which can be specially efficient for companies carrying out infrastructure related activities, since such debentures may be entitled to special tax benefits granted by the law. Another rather common structure involves the securitization of receivables – either through an assignment to an investment fund or to a securitization company. It is also worth mentioning that exporting companies have access to special lines of credit. Finally, there are also tailor-made structures (either involving equity or debt instruments) which can be put in place by investment banks in respect of specific appealing players.