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FEDERAL GOVERNMENT EXTENDS THE REPETRO AND REVIEWS TAX RULES FOR THE OIL AND GAS SECTOR
28/09/2017
The Brazilian Federal Government enacted the Provisional Measure 795 (“MP 795) and Decree no. 9,128, published at the Official Gazette, amending the tax treatment relative to exploration and production  (E&P) activities  of oil and natural gas, including the extension and amendments to the REPETRO and new maximum charter percentages/hire for purposes of reducing to zero the Withholding Income Tax rate  in remittances abroad. 

REPETRO - EXTENSION AND ALTERATION OF THE REGIME 

The Decree 9,128/2017 amended the Customs Regulation, extending the duration of the REPETRO until December 31, 2040.  

The Provisional Measure, in its turn, created two new importation modalities of goods by the REPETRO as of January 1st, 2018, with expiration period on July 31, 2022. 

The first importation modality provides for the total suspension of federal taxes (II, IPI, PIS, and COFINS) for goods that will permanently remain in the COUNTRY and intended for the activities of exploration, development, and production of oil and natural gas, set out on a list to be prepared by the Brazilian Federal Revenue Office (RFB). 

The second modality provides for the suspension of taxes upon the import process or acquisition in the internal market of raw materials, intermediate products, and packaging materials to be fully used in the productive process of final product intended for referred activities. 

The two new REPETRO modalities are still pending regulation   on the part of the Brazilian Federal Revenue Office. 

Withholding Income Tax (IRRF)  in Remittances by Charter or Vessels Hire 

The Provisional Measure amended the Law no. 9,481/1997 in order to increase, as of January 1st,2018, the maximum percentages of the charter contract/hire of offshore vessels for purposes of reduction of the Withholding Income Tax rate to zero, in cases in which the simultaneous contract of charter/ hire, and performance of services related to E&P operation occur between parties considered linked. 

The maximum percentage of the charter contract / hire was altered as per the following:

Note that there is an express proviso as to the application of new percentages to the vessels used in the offshore support navigation. However, given that the PM 795 did not exclude from its text the percentages currently in force, we understand that the offshore support vessels must conservatively continue to obey the percentage of 65% after January 1st, 2018. 

The PM 795 enlarged the definition of “linked persons” that started to comprise controlling interest or common administrative situations. Therefore, will be considered as linked the hypotheses in which: 

The foreign ship-owner  is its parent company, branch or subsidiary firm;

the controlling interest  in the capital stock of one in relation to the other characterizes it as his controlling company or affiliated company;

both of them are under the controlling interest or common administrative control or when at least ten percent of the capital of each one of them belongs to same individual, natural persons or legal entity;

together with the legal entity domiciled in Brazil, he has ownership interest in the capital stock of a third legal entity, as long as the sum of the ownership interest  characterize them as controlling companies or affiliated companies of this one; or

is his associate, in the form of consortium or co-ownership, in any venture.

LNG’s TRANSPORT, HANDLING, TRANSFER, STORAGE, AND REGASEIFICATION 

The Decree 9,128 altered the Customs Regulation to include the deadline of 31.12.2040 to the REPETRO, and consequently also altered the deadline of the temporary admission of goods intended for the activities of transport, handling, transfer, storage, and regasification of LNG. 

The article 2, paragraph 11,of the PM 795 laid down as of January 1, 2018, the maximum percentage of 60% for the charter portion/hire vis-à-vis the total value of the contracts for purposes of reduction the Withholding Income Tax (IRFF) to zero, when the charter contracts/hire and services are simultaneously performed between legal entities linked to one another. 

SPECIAL INSTALLMENT PROGRAMME 

The PM 795 allowed the utilization of maximum charter percentages in force, as per the set forth in article 1, § 2 and 12 of Law 9,841, and created the special instalment programme for the taxable events occurred until December 31st, 2014.  Such companies will be able to pay the Withholding Income Tax (IRFF) difference, increased by interest calculated with the SELIC rate, and with reduction of 100% of the late payment penalties, and automatic fines, on condition of waiving possible administrative and judicial proceedings on the subject. 

The special instalment programme depends upon regulation.  

DEDUCTIBILITY RULES IN THE RESEARCH AND DEVELOPMENT PHASES 

The PM 795 updates and clarifies the deductibility rules of the taxable income and the CSLL’s tax base of the amounts applied in each determination period, in the E&P activities, especially in the development phase. 

During the development phase, the company can deduct the exhaustion quota, as well as in a fast-paced mode according to the Produced Units Method, as long as the price of the asset is not exceeded.  

Machinery, equipment, and facilitator instruments applied in the activities of production development will be depreciated according to depreciation rates laid down by the Brazilian Federal Revenue Office. 

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