Tax Reform in Brazil and the U.S.

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1 Tax Reform in Brazil and the U.S. Devon M. Bodoh Principal in Charge Latin America Markets, Tax KPMG LLP Carlos Eduardo Toro Director KPMG Brazil

2 Agenda Overview of Global Tax Reform Overview Organization for Economic Co-operation and Development ( OECD ) Action Plan Global Tax Reform: Case Study - Mexican Reform Brazil Tax Reform U.S. Tax Reform U.S.-Brazil Tax Treaty 2

3 Global Tax Reform

4 Overview of Global Tax Reform In recent years, significant attention has been focused on the concept of tax fairness and multi-national business enterprises avoidance and minimization of taxation through the manipulation of the different global tax regimes and tax havens. As a result, there have been significant international tax reform proposals in the past several years that attempt to limit international tax avoidance. 4

5 Global Tax Reform: OECD Action Plan At the request of the G20 s finance ministers, the OECD issued an action plan to address the features of tax regimes that lead to the avoidance and abusive minimization of taxation or the shifting of profits away from the jurisdictions where the activity generating those profits takes place (i.e., base erosion and profit shifting to low taxing jurisdictions or BEPS ) in July This plan includes 15 action items intended to be completed by December 2015 to provide assistance in coordinating the reduction of BEPS. 5

6 Global Tax Reform: OECD Action Plan (continued) The OECD action items include: Identifying and developing options to address the problems of taxing the digital economy Developing options for reducing the use of hybrid instruments and hybrid entities to generate additional deductions and manipulate foreign tax credit regimes A hybrid instrument is generally treated as debt in one jurisdiction and equity in another and a hybrid entity is generally treated as corporation in one jurisdiction and a non-corporation in another 6

7 Global Tax Reform: OECD Action Plan (continued) The OECD action items (Cont.): Strengthening anti-deferral rules regarding the taxation of domestically controlled foreign companies Developing options to limit tax base erosion through excessive interest expenses (especially with regard to related-party debt) Increasing transparency and reducing predatory international tax competition that causes a race to the bottom Developing model treaty provisions (e.g., limitations on benefits provisions) that prevent the use of treaties for tax avoidance 7

8 Global Tax Reform: OECD Action Plan (continued) The OECD action items (Cont.): Limiting profit shifting through the artificial avoidance of a taxable presence in a taxing jurisdiction (e.g., limiting the effectiveness of commissionaire arrangements or other agreements) Strengthening transfer pricing rules (i.e., rules taxing related-party transactions), especially in the context of intellectual property, and reexamining transfer pricing documentation Requiring mandatory disclosure of aggressive tax planning by taxpayers Improving mechanisms to resolve disputes regarding the application of tax treaties 8

9 Global Tax Reform: Case Study - Mexican Reform In November 2013, Mexico passed tax reform including several provisions based on the OECD Action Plan. For example: To receive treaty benefits in transactions involving related parties, the Mexican taxpayer must make a statement, under oath, that the income the treaty benefits will apply to is subject to tax in the country of the income recipient s residence. Certain payments (e.g., interest, royalties, and technical assistance) made to a foreign corporation that controls or is controlled by the Mexican taxpayer are not deductible if the foreign company receiving payments is transparent (i.e., a hybrid entity) and does not pay tax on such income. Revising the transfer pricing system for certain taxpayers (generally imposing a fixed percentage calculation but a ruling may be obtained from the Mexican taxing authorities for other transfer pricing methods) 9

10 Brazil Tax Reform

11 Brazilian Tax Landscape Strongly based not only on Corporate Income Tax but also on Indirect Taxes Three jurisdictions and tax collection levels: Federal, State and Municipal Tax War Granting of ICMS tax incentives as a way to attract investments Brazilian transfer pricing rules are not OECD based Tax litigation is common and lengthy Tax compliance IT is extremely important due to electronic delivery of accessory obligations Brazilian tax system has been moving (to some extent) towards the adoption of a substance over form approach 11

12 OECD Action Plan (BEPS) and Brazil Brazilian Revenue Service takes the view that Brazil is somewhat already adopting BEPS Indeed, in the past years Brazil has been implementing anti-abuse legislation and other measures to increase revenue in several areas and this should continue in the years to come: CFC legislation (1995) Transfer pricing (1996) Higher withholding tax rates for payments to tax havens (1999) General Anti-Abusive Rule (GAAR) in Brazilian Tax Code (2001) Non-residents capital gain taxation (2003) Introduction of the concept of privileged tax regime (2008) Stringent rules on the transfer of tax residency to tax havens (2010) Thin cap rules (2010) Deductions restrictions to payments to tax havens (2010) LOB provisions in recent DTTs 12

13 Brazilian Tax Reform simplify the tax system in terms of both federal taxes and the ICMS (State VAT), eliminating taxes and reducing and streamlining tax legislation extinction of five taxes and creation of a new value added tax (IVA-F) unification of the 27 State ICMS laws into a single law. The new ICMS will continue to be charged by the States and the rates will be uniform throughout the country end the fiscal war among the States by modifying the levy of the ICMS in interstate transactions, in such a way that the tax would be due in the State of destination (gradual transition required) reducing payroll taxes by cutting back the employer contributions to the Social Security system from 20 percent to 14 percent reducing investment taxes, primarily through gradual reductions in the period required for appropriation of the tax credits paid on acquisitions of machines and equipment (e.g. 48 month period for ICMS) 13

14 U.S. Tax Reform

15 Current U.S. Tax System: Overview Worldwide Taxation of U.S. Residents U.S. residents (i.e., individuals and business entities) are taxed on their worldwide income. Deferral Regime for Foreign Corporations Controlled by U.S. Shareholders Generally income of a foreign corporation that is controlled by a concentration of U.S. shareholders (a CFC ) is only taxed in the U.S. when it distributes income to the shareholders. However, certain types of a CFC s income (generally, passive income) may be taxed immediately. CFC income subject to immediate taxation is referred to as Subpart F income. 15

16 Current U.S. Tax System: Overview (continued) Broad Entity Classification Regime in the U.S. The U.S. tax system allows certain foreign business entities to elect treatment as a transparent entity (i.e., not subject to entity level) for U.S. federal tax purposes. This is referred to as the Check the Box Regime. Foreign Tax Credit System Direct Credits: U.S. residents are entitled to a credit against U.S. taxes certain taxes paid outside the U.S. Indirect Credits: In addition, certain U.S. shareholders of a CFC may be entitled to a credit for certain taxes paid outside the U.S. by CFCs. Foreign Tax Credit Limitations: Foreign tax credits may only be used to offset income in the same category of income. 16

17 U.S. Tax Reform: Overview The current U.S. tax system has allowed extensive tax planning that defers or eliminates effective taxation on significant accumulated foreign earnings outside the U.S. which has resulted in significant base erosion and profit shifting and U.S. tax avoidance. In response to these perceived abuses, several proposals to overhaul the U.S. tax system have been introduced recently: Camp Proposal: Ways & Means Committee Chairman Camp issued proposed changes to the U.S. international tax system on October 26, Baucus Proposal: Senate Finance Committee Chairmen Max Baucus issued proposed changes to the U.S. international tax system on November 19,

18 Camp Proposal: Overview First detailed U.S. legislation moving toward tax system where most foreign income is not taxed in the U.S. so long as such profits are repatriated to the U.S. That is, moving the U.S. tax system from a worldwide tax system to a territorial tax system. Intended to curtail BEPS in the current tax system Intended to be revenue neutral on a stand-alone basis Generally, small amount of tax (5 percent) on non-u.s. repatriated income. 18

19 Baucus Proposal: Overview Intended to curtail BEPS in the current tax system Intended to be revenue neutral in the long term The proposal includes two alternative taxing regimes (referred to as Alternative Y and Alternative Z ). One would provide a dividends received deduction for non-u.s. repatriated earnings. While the other would provide current taxation with a 40 percent exemption for all non-u.s. income. 19

20 U.S.-Brazil Tax Treaty

21 U.S.-Brazil Tax Treaty The principal reform of U.S.-Brazilian tax would be the signing of an income tax treaty. Such an income tax treaty would generally: Provide relief from double taxation (i.e., taxation of the same income in both the U.S. and Brazil) This would involve, for example, reducing or eliminating certain withholding taxes, imposing a higher threshold on taxing business profits, and providing for tax sparing Increase the exchange of information between the U.S. and Brazil Address transfer pricing issues and tax dispute resolution between the U.S. and Brazil These features would facilitate greater cross border commerce and investment between the U.S. and Brazil Obstacles to a U.S.-Brazil income tax treaty Disagreement on tax sparing Limitations on benefits 21

22 Appendix

23 Camp Proposal: Specific Key Items Taxation of Previously Deferred Income Taxes as Subpart F income all previously non-taxed accumulated foreign earnings (earned prior to Jan. 1, 2013) of certain foreign corporations with a 10 percent U.S. shareholder Anti-Deferral Rules Creates a new category of Subpart F income to address BEPS concerns Taxation of Foreign Branches Causes certain foreign branches to be treated as CFCs Would occur notwithstanding the Check the Box Regime Anti-deferral rules of Subpart F would apply to these foreign branches Immediate gain recognition on conversion from foreign branch to CFC 23

24 Camp Proposal: Specific Key Items (continued) Foreign Tax Credits Repeals most foreign tax credits for foreign taxes paid by corporate subsidiaries of a U.S. corporate shareholder Thin Capitalization Rules Includes thin capitalization rules that disallow a portion of interest deductions where a there is excessive domestic (i.e., U.S.) indebtedness (calculated in relation to worldwide indebtedness or adjusted taxable income). Taxation of Repatriated Foreign Income Ability for significant amount (95 percent) of certain categories of CFC income (i.e., active income) to be repatriated to certain U.S. shareholders tax-free. 24

25 Baucus Proposal: Key Items Common to Both Alternatives Partial Repeal of Check-the-Box Regime Entity level taxation would be mandatory for certain foreign entities Taxation of Previously Deferred Income Previously undistributed accumulated earnings of a CFC as of Jan. 1, 2015 are treated as if distributed to the CFC s U.S. shareholders and taxed at 20 percent Treatment of Hybrid Instruments/Entities Prohibits a deductions on certain hybrid dividends paid by a CFC Eliminates exemption from Subpart F income for certain hybrid dividends between CFCs Denies deductions for base erosion arrangements, i.e., arrangements that reduce foreign taxes and involve a hybrid instrument, hybrid entity, or conduit financing 25

26 Baucus Proposal: Key Items Common to Both Alternatives (continued) Anti-Deferral Rules Limit the categories of items that give rise to Subpart F income Foreign Tax Credits Repeals most indirect foreign tax credits, i.e., credits for foreign taxes paid by corporate subsidiaries of a U.S. corporate shareholder Withholding Tax on Portfolio Interest Payments Limits the existing exemption from U.S. withholding tax of certain portfolio interest payments made to residents of a country that has a tax treaty with the U.S. which provides U.S. residents with a similar benefit 26

27 Baucus Proposal: Key Items Specific to Alternative Y Taxation of Foreign Active Income Ability for 100 percent of certain categories of CFC income (i.e., active income) to be repatriated to certain U.S. shareholders tax-free Anti-Deferral Rules Add new subpart F income categories United States related income The sum of a CFC s import property income and United States services income Low-taxed income Active foreign business income subject to a local effective tax rate less than 80 percent of the maximum U.S. corporate rate (i.e., 28 percent at current domestic rate) Modify other existing income categories Foreign Tax Credit Limitations Modify income categories for purposes of determining Foreign Tax Credit limitations 27

28 Baucus Proposal: Key Items Specific to Alternative Y Anti-Deferral Rules Would completely eliminate deferral for all CFC income and provide a partial exemption (40 percent) for active foreign market income. Foreign Tax Credit Limitations Modify income categories for purposes of determining Foreign Tax Credit limitations 28

29 Proposal Comparison Proposal Foreign Active Income Exceptions: Sub F Income Interest Expense Allocation Foreign Tax Credits Branch Activities Option Y 100 percent DRD for 10 percent shareholders Passive Income U.S. Related Income Low-Taxed Income Repeal base company rules Baucus Option Z Current taxation but 40 percent exempt Non Active Foreign Market Income (including passive income) Non-exempt portion of active foreign market income Permanent disallowance for interest expense allocated to exempt foreign active income Worldwide apportionment Six 904 limitation categories No FTC for fully exempt income Repeal 902 Subject to current taxation Three 904 limitation categories 60 percent FTC for foreign active income Repeal 902 Subject to current taxation Camp 95 percent DRD for 10 percent shareholders Retains current subpart F rules Certain low-tax and/or intangibles income (Options A, B and C) Permanent disallowance for excess domestic indebtedness Worldwide apportionment One 904 limitation category Repeal 902 Treated as CFCs 29

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