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Research by Country/Region October 22, 2014  
BRAZIL: CUSTOMS, TAXES, and DOCUMENTATION REQUIREMENTS: IT PRODUCTS and SERVICES IMPORTS

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A. Is this country a member of the Information Technology Agreement?

B. Customs documentation requirements for IT products

C. Software: duties and taxes, updates, licenses, electronically delivered

D. IT services: tax treatment and other regulations

E. Refurbished, used, or repaired computer equipment imports


A. IS THIS COUNTRY A MEMBER OF THE INFORMATION TECHNOLOGY AGREEMENT?
NO
Signatories to the Information Technology Agreement (ITA) have eliminated their import duties on a wide range of information technology products, including software and computer hardware. For more information on the ITA, and exact tariff elimination schedules of signatories, click here.
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B. CUSTOMS DOCUMENTATION REQUIREMENTS FOR IT PRODUCTS

What are the documentation requirements for the physical import of software? For other information technology products?
Before the merchandise is shipped, the exporter should verify the correct Brazilian customs code for the product, by sending to the import handler all the details about the product. This code is necessary to verify if the product needs an import license (LI), which is the most important document required. If the exporter sends the merchandise without an LI, the merchandise will be fined up to 30% of the product value when it arrives in Brazil. A commercial invoice and the bill of lading or air waybill, as applicable, are also documents required by Brazilian laws and regulations for cargo shipments to Brazil.

The commercial invoice should include all details about the merchandise being shipped. It should be prepared by the manufacturer or the seller in the country of origin (not by a seller who is not established in the country of shipment) or a buying agent of the Brazilian importer. Usually, this document includes the full address of the shipper, seller, and consignee (if other than seller); the import permit number; other reference numbers; date of the order; shipping date; delivery and payment terms; a complete description of the merchandise; and export markings. A declaration of origin that is combined with a declaration of correct price should be made on the commercial invoice, which in turn should be certified by the foreign exporter or local chamber of commerce.

The exporting company should send to the import handler all the documents relative to the purchase, mainly the original invoice with the company stamp or seal and the signature. In addition, the payment of Brazilian taxes must be previously agreed to between the exporting company and the importing company. The payment for the merchandise has to be done through a bank.

Finally, when the product arrives in Brazil, the import handler will obtain the declaration of import (DEI), that includes all the information about the importation.
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C. SOFTWARE: DUTIES and TAXES, UPDATES, LICENSES, ELECTRONICALLY DELIVERED

DUTIES AND TAXES ON SOFTWARE IMPORTS

Are duties assessed on the intellectual property of the software or on the medium on which is it presented?
All duties and taxes are paid on the amount stated on the invoice.

Are taxes assessed on the intellectual property of the software or on the medium on which is it presented?
The ICMS is a state government value-added tax applicable to both imports and domestic products.* Although importers have to pay the ICMS to clear the imported product through customs, it is not necessarily a cost item for the importer, because the paid value represents a credit to the importer. When the product is sold to the end-user, the importer debits the ICMS, which is included in the final price of the product and is paid by the end-user.

The ICMS rate varies among states (for example, in the state of Sao Paulo, the rate is 18%). On interstate movements, the tax will be assessed at the rate applicable in the state of destination. (Some sectors of the economy, such as construction services, mining, electrical energy, and liquid and gaseous fuels are exempt from the ICMS tax. Most Brazilian exports are exempt.)

The ICMS tax on imports is assessed ad valorem on the "customs value," plus import duty, plus industrial product tax (IPI), plus the ICMS duty itself. To calculate the tax due:
Y1 = ((CV + II + IPI) x 100) / (100 - ICMS tax rate)
Y2 = (ICMS tax rate x Y1)
Where Y2 is the amount of tax due
(CV = customs value; II = import duty; IPI = industrialized product tax; ICMS tax rate: local rate)

Effectively, the tax is paid only on the value-added, since the cost of the tax is generally passed on to the buyer in the price charged for the merchandise. The ICMS tax due to the state government by companies is based on taxes collected on sales by the company, minus the taxes paid in purchasing raw materials and intermediate goods. The ICMS tax is levied on both intrastate and interstate transactions and is assessed on every transfer or movement of merchandise.

Rio de Janeiro - average 0% (ICMS) intellectual property -from 15% for international royalty remittances to 25 % for payment of withholding tax.

Sao Paulo - average 1% - 2% (ICMS) intellectual property - from 15% for international royalty remittances to 25% for payment of withholding tax.

Both carrier average value and content value must be stated on the pro-forma invoice and the commercial invoice. If the company does not state the information above the Brazilian customs will charge ICMS on the intellectual property.

International money transfers, such as payment for software purchases, are subjected to a 15% withholding tax. International tax attorneys have advised that, in certain cases, a U.S. company with proof of payment of this withholding tax can apply for a tax credit against U.S. taxes due on the company's foreign earned income.

The Brazilian government has recently instituted a new tax related to royalty remittances and technical services with transfer of technology that puts many foreign companies at a significant disadvantage in Brazil. The new tax, technically referred to as a "social economic interference contribution" (CIDS), imposes an additional 10% surcharge on the current 15% tax on many technology companies' royalty remittances.

*State value-added tax (ICMS): the 1998 constitution granted authority to the Brazilian states to collect the tax on the circulation of merchandise and on the rendering of interstate and inter-municipal transportation services and on communications, even when the transaction and the rendering of services start in another country. ICMS is not a cumulative tax; that is, such tax is only assessed on the increase, referred to the price of the product in each part of the circulation process. The calculation process involves the following system. In each payment period, the taxpayer must check the amount of debits and credits related to the state value-added tax. If the taxpayer has more debits than credits, it will have to pay the tax on the difference between them. In summary, the credits are computed at the moment of the raw materials entering the taxpayers' premises and the debits are computed at the time the final products exit the establishment.

Moreover, taxpayers are not allowed to account for credits on materials purchased that will be used on goods that will not be taxable when they exit the company. It is not permitted to import into Brazil any refurbished computer parts.

Is customized software treated differently than packaged software?
No.
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IMPORTS OF SOFTWARE UPDATES

What are the customs duties and tax implications for software sold with updates when the full sales price, including cost of updates, is shown on the original commercial invoice? Are duties and taxes paid on that amount? What happens when the updates are sent at a later date? Are duties/taxes applied again? If so, based on what value? How should information presented on the commercial invoice for the original and subsequent shipments to avoid paying duties/taxes more than once on a single sale?
The same duties and tax are applicable for software sold with updates (see section C above). If the updates are sent or made later on, payment will be made following the instructions provided above.

Sources report that, regardless of whether update information was presented in the original commercial invoice, every time the Brazilian company pays for the updates, there will be tax payment over international royalty remittances or payment of withholding tax.
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SOFTWARE LICENSES: CUSTOMS CLASSIFICATION, IMPORT DUTIES, TAXES, OTHER

Are software licenses classified in Harmonized System 4907?
Because the Brazilian legislation does not classify the software license as a product, there is no classification at the Brazilian customs table system.

Are import duties/taxes applied? If so, on what cost/price base are they levied?
There is no tax for software licensing.

Are withholding or other additional taxes applied on software licenses? If yes, how?
There is a 25% withholding tax on interest and rolayties paid to non-residents.

If a U.S. license agreement is included in the packaging or is part of the installation/registration of shrink-wrapped software imported from the United States, would that agreement be binding on consumers in your market? If so, would U.S. or local laws pertain?
No. The contracts must be registered on a notary public (titles and document notary public) and translated into Portuguese. The Brazilian Copyrights' Law is the law that governs the market.
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SOFTWARE DELIVERED OVER THE INTERNET/ELECTRONICALLY DELIVERED SOFTWARE

Are taxes applied to software delivered to the end-user over the Internet? If so, on what value?
For software delivered over the Internet, the taxes will be assessed on the intellectual value of the property at a rate of from 15% for international royalty remittances to 25% for payment of withholding tax.

Would the situation be different if this software were instead delivered to a distributor who has a license to produce (replicate) and sell the software?
For sale purposes there is no distinction between end-user and distributor.

What are the documentation requirements for the electronically delivered import of digitized products (i.e. software, movie downloads) over the Internet or other networks?
The documentation requirements for the electronically delivered import of digitized products over the Internet are the same requirements used for physical shipments of software. The importer must present an invoice and pay the taxes accordingly, as described above.

Must an electronically delivered software import be accompanied by a physical shipment of the same product?
There is no requirement to send physical shipment for software delivered electronically.
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D. IT SERVICES: TAX TREATMENT AND OTHER REGULATIONS

Are services (i.e. training, set-up, etc) relating to the sale of software taxed? If so, at what rate and based on what value?
Services related to the sale of software are taxed at a rate of 25% over the service cost.

Are U.S. IT solution providers permitted to send personnel into the country to set up hardware/software-related systems?
U.S. IT solution providers are allowed to bring specialized personnel into Brazil.

Are special visa, work permits, and/or professional certification by an accredited body required?
For persons coming to Brazil on a temporary basis for working purposes, there are the following categories of visas:
  • Professional's visa - available to individuals coming to Brazil to work for a temporary period no longer than 2 years initially, and may be renewed for an additional 2-year period. This type of visa is available to foreign nationals who will be temporarily employed at a Brazilian company in a position requiring special knowledge. The candidate shall receive at least part of his salary in Brazil. This type of visa will also require proof that the candidate has at least two years of experience in the activity he will perform in Brazil, if he has a college degree, or three years of experience if he does not have a college degree.
  • Technician's visa - available to individuals coming to Brazil to render technical assistance according to a technical assistance agreement executed by a foreign company and a Brazilian company.
Documentation required for working visa:
- work permit petition;
- information about the company the candidate works for;
- voucher of the payment of the individual immigration taxes -darf
- articles of incorporation of the petitioning institution.
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E. REFURBISHED, USED, OR REPAIRED COMPUTER EQUIPMENT IMPORTS

1. REFURBISHED COMPUTER EQUIPMENT
Is the import of refurbished computer hardware, parts, and accessories (including toner cartridges) permitted?
No, it isn't. Refurbished equipment cannot be exported to Brazil. The Brazilian legislation on this topic is available (only in Portuguese) at the homepage of the Ministry of Science and Technology: http://www.mct.gov.br/legislacao.

See these laws and decrees are subject to it:
Law 7232 of 1984
Law 8248 of 1991
Law 8387 of 1991
Law 9609 of 1998
Law 10176 of 2001
Decree 3800 of 2001
Decree 3801 of 2001
Decree 4509 of 2002
Decree 4401 of 2002
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2. USED COMPUTER EQUIPMENT
Is the import of used computer hardware, parts, and accessories (including toner cartridges) permitted?
No, used computer hardware, parts and accessories cannot be exported to/sold in Brazil.

The only case in which it is permitted to export used equipment is when SEPIN (Secretariat for Information Technology Policy at the Ministry of Science and Technology), together with SECEX (Secretariat of Foreign Trade at the Ministry of Development, Industry and Foreign Trade), and DECEX (Department of Foreign Trade Operations at the Ministry of Development, Industry and Foreign Trade) approve a specific project that was previously submitted.

As an example: if a manufacturer is moving its plant to Brazil, the company might request at SEPIN, DECEX, and SECEX the permission to export its used equipment that was previously used in the plant.
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3. REPAIRED COMPUTER EQUIPMENT
Are duties and taxes assessed on the re-import of repaired computer equipment?
If a computer part has to be repaired, the duties and taxes will be assessed on the new component, not on the computer itself. If the computer is sent to the United States for repair, the machine will be shipped under "temporary export" and the new piece that will substitute the old part will assess duties and taxes as for all imported products.

Additional notes on temporary importation:
On December 20, 1999, Brazilian Customs issued regulation 150 (instrugco normativa 150) establishing new procedures for imports under a temporary admission program. The program allows for imports of goods for a pre-determined time frame and a clear objective, such as exhibit at trade shows. Under the program, import tax (II) and the federal tax (IPI) are only charged on products that will be used in the production of other products and involves payment of rental or lease from the local importer to the international exporter. This includes products such as dies, matrices, sheets and industrial tools. Taxes due are proportional to the time frame the imported product will remain in Brazil.

The import tax applicable on products imported under temporary admission program is calculated according to the following formula:
v = i x ( 1 -(12 x u - p)) / (12 x u)

V = the tax to be paid
I = federal taxes in the normal import process
P = number of months in which the product will remain in brazil
U = the life span of the product - according to normative
Instruction # 162, dated december 31, 1998

An example is a leasing operation for 12 months of a us$ 200,000 machine into Brazil, with 10% import tariff and 5% tax over industrial product (IPI). The life span of this hypothetical machine is 5 years.

In a regular operation the due taxes would be as follows:
CIF price: 200,000
Import tax: 20,000
IPI: 11,000 (cost in Brazilian currency that is the amount paid with product's CIF value, plus international freight, plus insurance on the international freight + import tax)
Payable taxes: US$ 31,000

Under the temporary admission program payable taxes would be as follows:
V = 31,000 x (1 - (12 x 5 - 12)) / (12 x 5)
V = 31000 x [1 - 0.8]
V = 31000 x 0.2
V = 6200
V = US$ 6200

Payable taxes: US$6200

How should the commercial invoice appear?

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RESPONSE INFORMATION

This response was prepared by the U.S. Department of Commerce/Commercial Service in Brasilia, Brazil in February 2003. For further clarification please contact:
Mr. Bernhard Smid
Commercial Specialist
U.S. Embassy, Brasilia
bernhard.smid@mail.doc.gov

Special Notes: The above information is intended to serve only as unofficial guidance. In seeking to obtain government rulings in specific cases, it will often be necessary to refer to special laws, separate regulations and announcements, and case-by-case decisions by the government. Beyond the general guidelines shown above, legal counsel should be retained at an early stage of consummation of a major procurement contract, and before entering into any legal commitments.

Sources: ABINEE (Brazilian Association for Electro-Electronics); Secretariat for Information Technology Policy, Ministry of Science and Technology (Government of Brazil); Almeida Law Advogados; Brazilian Association of Software and IT Services; HP Brazil.

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