Brazil: Tax Treaty Series: The Bilateral Income Tax Treaty Between Brazil And South Africa

This is the sixth of our series of posts on Brazilian tax treaties. In each post we provide an overview of a specific tax treaty between Brazil and a particular foreign country, as well as comments on any Brazilian administrative or judicial precedents applying the treaty, and highlights on the impact of the OECD Base Erosion and Profit Shifting ("BEPS") project in its application.

Overview of the treaty

Decree 5,922, published on October 4th, 2006, contains the text of the Bilateral Income Tax Treaty signed by Brazil and South Africa ("Treaty"). This Treaty is aimed at preventing double imposition and double non-imposition of income taxes in cross-border operations between the two countries.

For Brazilian purposes, as of December 09, 2015, the treaty generally applies not only to the Individual and Corporate Income Taxes ("IRPF" and "IRPJ") and to the Withholding Income Tax ("WHT"), but also to the Social Contribution on Net Profits ("CSLL").

With regard to CSLL, this tax is not expressly mentioned in the Treaty. However, recent Law 13,202/2015 clarifies that Bilateral Income Tax Treaties signed by Brazil include CSLL:

Art. 11. For purposes of interpretation, the international agreements and conventions signed by the Government of the Federative Republic of Brazil to avoid double taxation include CSLL.

Please note that our reference to the Withholding Income Tax ("WHT") in the next paragraphs does not describe the entire tax burden imposed on certain income streams, such as royalties, for example. Other taxes may be imposed on cross-border royalty payments (such as the Special Tax on Royalties ("CIDE"), the Municipal Tax on Services ("ISS") and the Tax on Foreign Exchange Transactions ("IOF-FX")), but because these taxes do not qualify as "income taxes", they are outside of the scope of the Treaty.

The Treaty is generally based on the OECD Model Convention available at the time (2003), as well as on Brazilian tax treaty practice after 2000. Key aspects of this Treaty from a Brazilian perspective are:

  • Source taxation

Dividends, interest and royalties earned are generally subject to WHT in Brazil and to a WHT credit in South Africa and vice-versa. Specifically:

  • For dividends received by a beneficial owner resident in a Contracting State, the maximum WHT is (a) 10% if the beneficial owner is a legal entity that owns at least 25% of the stock of the payor, or (b) 15% in all other cases.

    A special rule provides that the profits of a permanent establishment, when distributed to the foreign owner in a Contracting State, shall be subject to a WHT of up to 10%. Though Brazil generally regards permanent establishments as domestic legal entities, it would seem that if a relevant permanent establishment qualifies as a branch under Brazilian Law, a rate of up to 10% would apply.1

    In practice, it is difficult to form a branch of a foreign entity in Brazil, since our law requires authorization from the President, via Presidential Decree, to incorporate such a branch, in such a way that, in practice, only few companies operate in Brazil via branches. The most commonly found structure is a subsidiary, which is incorporated as a Brazilian company.

    Under current Brazilian Law, dividends paid to Brazilian or foreign recipients are exempt from WHT.2

  • For interest received by a beneficial owner resident in a Contracting State, the maximum WHT is generally set at 15%. However:

    (1) Interest arising in a Contracting State and paid to the Government of the other Contracting State, including any of its political subdivisions, or to its Central Bank, or to any financial institution exclusively owned by this Government, or owned by a political subdivision thereof, is exempt from WHT in the first Contracting State – except if the interest is classified under item (2) below.

    (2) Interest from obligations, bonds or debentures issued by the Government of a Contracting State, or by a political subdivision thereof, or by any financial institution exclusively owned by this Government, or exclusively owned by a political subdivision thereof, shall only be taxed in this Contracting State.

    (3) In all cases, the limitation of the WHT rate shall not be applicable to agencies or branches of South African banks located in other States.

    Under current Brazilian Law, interest paid to foreign recipients is generally subject to a WHT of 15%,3 which is coincident with the treaty limit. In case of Brazilian governmental bonds issued locally, based on our internal law, exemption applies to non-resident investors that comply with a number of requirements (residing in a jurisdiction other than a tax haven, registration with the Central Bank and Brazilian SEC as a qualified foreign investor – "4,373 Regime", appointment of a Brazilian Bank as representative in Brazil).

  • For royalties derived from trademark use, the maximum WHT rate is 15%. In all other cases (including payments for technical services and technical assistance), the maximum WHT rate is 10%.4

    Under current Brazilian Law, royalties paid to foreign recipients (including payments for technical services and technical assistance) are subject to a WHT of 15%.5

  • Capital gains, differently from the OECD Model Convention, are taxable in both Contracting States, and there is no WHT limitation in the Treaty. The only exception is Article 13, paragraph 2, which determines that gains obtained from alienation of ships or aircrafts operated in international traffic (and from movable assets used to operate these ships or aircrafts) are taxable only in the country where the headquarters of the company are located.

    Under current Brazilian Law, capital gains obtained by foreign residents (not located in a tax haven) are subject to a WHT of 15%.6 Source taxation is applicable even in case of non-resident seller and buyer – in this case, the buyer is required to withhold the corresponding amount, nominate an attorney-in-fact in Brazil and cause this attorney-in-fact to collect the WHT due.

    There is an intention to increase the WHT from 15% to 22.5% according to the most recent version of the law project proposed by the Government to the Brazilian Congress. This bill, if approved, will be enforceable as of the following calendar year.

  • Beneficial ownership

The Treaty with South Africa is similar to the majority of Brazilian tax treaties in the sense that it uses the expression "beneficial owner" in Articles 10, 11 and 12, but it is different from other treaties because it contains (sparse) references to the meaning of "beneficial ownership". These references are:

  • Paragraphs 7, 9 and 7 (respectively) of Articles 10, 11 and 12: these provisions state that if the main purpose of the receipt of dividends, interest and royalties is obtaining a benefit under the Treaty, no treaty benefit shall be granted – domestic legislation becomes applicable.
  • Paragraph 2 of Article 28: this provision establishes that a legal entity resident in a Contracting State that obtains earnings sourced in the other Contracting State shall not have the right to a treaty benefit from the other Contracting State if over 50% of the effective ownership in this entity (or, in the case of a corporation, over 50% of the aggregate value of its voting stock and of its other stock) is owned, directly or indirectly, by any combination of one or more people that are not residents of the first Contracting State. This provision is not applicable if the legal entity in question carries out, in its Contracting State of residence, a substantial business activity which is not the mere ownership of bonds or other assets, or the mere rendering of ancillary, preparatory or similar activities with regard to associated entities.

Although unfavorable to taxpayers in light of their degree of discretion, some of these provisions are in line with the recommendations of the OECD in Action 6 of its BEPS Action Plan.7

Finally, it is important to highlight that the Treaty with South Africa contains other provisions that limit the granting of treaty benefits. These are associated with the level of taxation imposed on the income of the person claiming them, as provided by Article 28, paragraph 1. This provision deals specifically with foreign income obtained by a corporation:

(a) with navigation activities;

(b) with banking, financial, insurance, investment or similar activities; or

(c) by virtue of its status as the main office, the center of coordination or a similar entity that provides administrative services or other kind of support to a group of corporations that carry out business activities mainly in other States.

If, after the signature of the Treaty, foreign income earned by any of these corporations is not taxed by the new legislation of a Contracting State (or is taxed at a rate significantly lower than the rate applied to earnings from similar activities in the same territory), the other Contracting State shall not be limited by the Treaty with regard to its own ability to tax the corresponding foreign income (or the dividends paid by the relevant corporation).

  • Tax sparing

Like the majority of Brazilian tax treaties signed after 2000, the Treaty with South Africa does not contain any tax sparing clause. The credit system in Brazil and South Africa is therefore based on the actual WHT imposed on each transaction.

  • Income derived from technical assistance and technical services

In accordance with Item 3 of the Protocol of the Treaty, income derived from technical assistance and technical services is regarded as royalties (Article 12) for Treaty purposes.

This classification is important because Brazilian taxpayers have challenged the imposition of WHT on payments for services to recipients resident in Treaty countries (at the time, Germany and Canada), claiming that the business profits provision of the corresponding agreements (Article 7th) would prohibit taxation at source. The landmark case on this subject, REsp 1161467/RS, was decided in 2012 by the Second Chamber of the Superior Court of Justice ("STJ"), and it was favorable to taxpayers.

Nonetheless, Interpretative Declaratory Act 05, issued on June 16, 2014, by the Federal Revenue Secretariat of Brazil ("RFB"), states that if "income derived from technical assistance and technical services" is regarded as royalties in any particular Treaty, its treatment shall be the one attributed to royalties (Article 12), and not to business profits (Article 7th). Besides, RFB has adopted a very broad concept of "technical services", considering as such any services in which the provider needs "skills, technique and training".

The issue of whether RFB exceeded the limits of its interpretive authority by issuing an Interpretive Declaratory Act that effectively restricted the scope of a court decision by STJ (albeit a non-binding one) is yet to be resolved.

In the meantime, strict compliance with treaty provisions and domestic law would indicate that "income derived from technical assistance and technical services" should be subject to a WHT of 15%, the domestic WHT rate applicable to payments of royalties and technical services.

  • Interaction with Brazilian CFC rules

In 2013, a binding decision issued by the Federal Supreme Court ("STF") in ADI 2588/DF defined that Brazilian CFC rules could apply to controlled foreign companies in blacklisted jurisdictions ("tax havens") and could not apply to affiliated foreign companies out of blacklisted jurisdictions.

Among the questions not answered by STF in the 2013 decision is whether controlled foreign companies in Treaty countries would be exempt from CFC rules. Decisions issued by STJ and by the Administrative Court of Tax Appeals ("CARF") have already dealt with this subject, mostly in favor of the taxpayers, but STF is yet to confirm that position from a constitutional perspective. While STF does not issue a final ruling on this subject, Brazilian tax authorities rely on references in the text of treaties (or the absence thereof) to impose CFC rules.

While STF does not issue a final ruling on this subject, Brazilian tax authorities rely on references in the text of treaties (or on the absence thereof) to impose CFC rules. Though there are treaties that either exempt undistributed profits (such as our Treaty with Denmark) or dividends (such as our Treaty with Spain), our Treaty is not a part of that group. Safe for a systematic interpretation of Article 7th, there is no provision in the text of the Treaty between Brazil and South Africa that would prevent the application of Brazilian CFC rules.

Administrative and judicial case law

To date, CARF, STF and STJ have not issued any decisions on the terms of the Treaty with South Africa.

BEPS highlights

Both South Africa and Brazil (key partners of the OECD) have actively participated in the drafting of the final reports for the 15 Actions of the Base Erosion and Profit Shifting ("BEPS") project. The two countries have distinct tax systems and tax treaty networks, but the OECD expects that both of them, as well as the entire G20 community, are able to implement BEPS proposals in a consistent and seamless manner.

Among the BEPS aspects associated with the application of the Treaty between Brazil and South Africa, we would like to highlight the following:

  • Hybrid Mismatches (Action 2)

The OECD has condensed two sets of recommendations into a final report on the subject of hybrid mismatches. These address (i) adjustments to domestic law and (ii) adjustments to existing tax treaties.8

  • Hybrid Mismatches (Action 2): Adjustments to Domestic Law

Though adjustments to domestic law are not within the scope of our comments in this Series, it is important to highlight that with regard to one type of "hybrid payment" for equity ownership, the Treaty already favors compliance of South Africa with OECD proposals.

Item 2 of the Protocol to the Treaty defines that interest on net equity ("JCP"), a "hybrid payment" deductible at source and generally regarded as dividends by the residence country prior to the BEPS Action Plan, should be regarded as interest for Treaty purposes. Therefore:

  • At source, JCP is calculated on the shareholder net equity accounts and limited to the pro rata die variation of the Long Term Interest Rate ("TJLP"). Deductibility of JCP is limited to the higher of the following amounts: (i) 50% of the net profits of the period before the deduction of JCP;9 or (ii) 50% of the sum of accumulated profits and profit reserves, without taking into account the results of the current period.

    The current WHT applicable to JCP is 15% (except for recipients resident in tax haven or "blacklisted" jurisdictions, who are subject to a WHT of 25% – this is currently not the case of South Africa).10

    If converted into Law in 2016, starting on January 1st, 2017, Provisional Measure 694/2015 will require payors to limit JCP to the pro rata die variation of TJLP or to 5%, whichever is lower. It will also increase the domestic WHT on JCP to 18% (the Treaty rate of 15% should remain generally applicable to transactions before South African residents, however).

  • At residence, pursuant to Article 23, paragraph 1, item (a), of the Treaty, the South African recipient should be entitled to a foreign tax credit equivalent to the WHT imposed in Brazil (generally 15%, as described earlier). Please note that the actual foreign tax credit granted by South African tax authorities should be validated with South African counsel on a case-by-case basis.

    The literal application of the Treaty terms is in line with the recommendation of the OECD in this case, which would be for South Africa to include "hybrid payments" that have been deducted at source. Since South Africa already regards JCP as interest, provided that its tax treatment of this payment under domestic law is not more beneficial than the treatment under the Treaty, the country (and therefore the Treaty) is already in compliance with this proposal of the OECD in Action 2 of the BEPS Action Plan.

  • Hybrid Mismatches (Action 2): Adjustments to Existing Tax Treaties

The OECD proposals on treaty issues associated with hybrid mismatches are mainly focused on two separate areas: (i) treaty residence of dual-resident entities; and (ii) a clarification of the entitlement to benefits of transparent entities.

According to the OECD,11 tax authorities should be able to decide, on a case-by-case basis, the State of residence of so-called dual-resident entities (entities that either by virtue of treaty provisions, domestic law, or a combination of both, are regarded as residents in two separate jurisdictions). If tax authorities are not able to reach an agreement, the taxpayer would not be entitled to any treaty benefit (except for the ones agreed upon by competent authorities of both States).

In the Treaty between Brazil and South Africa, the clause that would have to be modified (or overridden) for this proposal to become effective is Article 4th, paragraph 3, which currently (i) favors the default jurisdiction of the place of effective management, and (ii) does not specifically allow case-by-case decisions.

Also, according to the OECD,12 "income derived by or through an entity or arrangement that is treated as wholly or partly fiscally transparent under the tax law of either Contracting State" should be regarded as "income of a resident of a Contracting State", but only to the extent that the income is treated, for purposes of taxation by that State, as the income of a resident of that State.

The inclusion of this proposal in Article 1st of the Treaty between Brazil and South Africa (possibly through a Multilateral Instrument) may affect WHT reductions, which may be partially denied if the person ultimately receiving the income is not a resident from South Africa, or vice-versa.

  • Entitlement to Treaty Benefits (Action 6)

The final report of Action 6 recommends the adoption of an "Entitlement to Benefits" clause, inspired by the Limitation on Benefits clause present in the United States Model Income Tax Convention.

The purpose of the new "Entitlement to Benefits" clause would be to prevent granting treaty benefits to persons that should not be entitled to them, either because doing so is not in the interest of either Contracting State, or because the relevant taxpayer has employed a structure completely devoid of economic substance for the sole or main purpose of enjoying protection under the treaty. The proposed clause is divided into a set of objective and subjective criteria (the "principal purpose test", or PPT section), and if its text is included in the Multilateral Instrument of Action 15, taxpayers wishing to enjoy treaty benefits must comply with both criteria.13

At this stage, it is difficult to forecast whether Brazil will sign up or not for a Multilateral Instrument containing this proposed clause. The Treaty with South Africa, however, already contains some provisions which are in line with the recommendations of the OECD in Action 6 of the BEPS Action Plan (as we described above, it already contains elements of the PPT proposed by the organization).

  • Effectiveness of Dispute Resolution Mechanisms (Action 14)

The OECD has proposed a number of adjustments not only to the text of Article 25 of tax treaties in existence, but to the application of its terms by Contracting States around the world. According to the OECD, a minimum standard for Dispute Resolutions would include (i) a commitment to the timely resolution of treaty disputes,14 (ii) the publication of decisions on treaty issues for the benefit of taxpayers,15 and (iii) a commitment to mandatory arbitration (which, admittedly, is not a consensus among G20 countries).16

Article 25 of the Treaty with South Africa is, in general terms, a feature of the totality of tax treaties signed by Brazil. It does not compel Brazilian tax authorities to reach a decision on the claim presented by the taxpayer, nor does it require that this resolution, if reached, is communicated in a timely fashion. Brazilian tax practice with Dispute Resolution Mechanisms is virtually non-existent: anecdotal evidence points to either a blatant disregard for requests for the application of Article 25 or to formal communications stating that the position of Brazilian Law is not subject to debate before treaty partners. Implementation of BEPS, therefore, will possibly show whether Brazil is willing to modify its historical position of indifference or deficient application of Article 25.

For further comments on the application of the Treaty between Brazil and South Africa, please do not hesitate to contact our firm.

(*) With the collaboration of our associate Lucas de Lima Carvalho (lcarvalho@tozzinifreire.com.br)

Footnotes

1. See Article 1st of Normative Instruction DREI 07/2013. See also Article 1st, item I, letter "c", of Ordinance 433/2006.

2. See Article 10 of Law 9,249/1995.

3. See Article 28 of Law 9,249/1995.

4. See Article 1st of Interpretive Declaratory Act SRF 01/2007.

5. See Article 3rd of Provisional Measure 2,159-70/2001.

6. See Article 685, item I, of Decree 3,000/1999 (Income Tax Regulations, or "RIR/99"). See also Article 21 of Normative Instruction RFB 1,455/2014.

7. OECD. Preventing the Granting of Treaty Benefits in Inappropriate Circumstances, Action 6 – 2015 Final Report. OECD/G20 Base Erosion and Profit Shifting project. OECD: 2015, p. 11. Available at: http://dx.doi.org/10.1787/9789264241695-en.

8. OECD. Neutralising the Effects of Hybrid Mismatch Arrangements, Action 2 – 2015 Final Report. OECD/G20 Base Erosion and Profit Shifting project. OECD: 2015. Available at: http://dx.doi.org/10.1787/9789264241138-en.

9. The net profits for purposes of item (i) are calculated after the deduction of CSLL and prior to the deduction of the IRPJ provision.

10. See Article 9th, paragraph 2nd, of Law 9,249/1995.

11. See note 8 above. OECD: 2015, pp. 137-138.

12. See note 8 above. OECD: 2015, pp. 139-143.

13. See note 7 above. OECD: 2015, pp. 21-69.

14. OECD. Making Dispute Resolution Mechanisms More Effective, Action 14 – 2015 Final Report. OECD/G20 Base Erosion and Profit Shifting project. OECD: 2015, pp. 15-16. Available at: http://dx.doi.org/10.1787/9789264241633-en.

15. See note 14 above. OECD: 2015, p. 17.

16. See note 14 above. OECD: 2015, p. 41.

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