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Brazil VAT overhaul – Senate IBS, CBS and Imposto Seletivo progress

Senate progresses three taxes to replace COFINS, PIS, IPI, ICMS and ISS indirect tax maze

One of the many proposals to reform the complex Brazilian indirect tax system is set to progress this year. Senate PEC 110/2019: consolidating existing federal and state taxes into a two VAT levies:

  1. a sub-national VAT on goods and services (Imposto sobre Operações com Bens e Serviços, IBS) to replace ICMS and ISS;
  2. a second VAT at federal level, CBS, to replace PIS and COFINS; and
  3. a federal excise tax on a limited range of goods and services (Imposto Seletivo) to replace IPI.

This proposal includes a 15-year implementation period.

The alternative federal government proposal, Chamber of Deputies PEC 45/2019, was aiming for federal-level only reforms of COFINS and IPI. There is no update on this and it effectively dropped. There is a federal-only proposal, PL 3887, to replace IPI and COFINS only with a new CBS tax.

The aim is to reduce instances of double and compounding taxes at the federal, state and municipal levels. This is seen as holding back the development of the internal industrial market, and encourage businesses to source and sell within Brazilian borders.

However, there are many challenges, particularly between the conflicted tax authorities at the federal, state and municipal levels. Tax sharing, and losses in any recut of the tax pie, will make it a tough battle. But the government seems set to push ahead nevertheless and dare the other stakeholders to hold out and block economic reform.

Brazil’s tax maze today

Currently, the major Brazilian consumption taxes are administered across the federal, state and municipal levels.

  1. Federal
  • COFINSContribuição Social para o Financiamento da Seguridade Social – the federal tax contribution to the Social Security Financing paid on company revenues. The rate can be up to 7.6% on monthly revenue depending on the activities of the company.
  • PISPrograma de Integração Social, at a rate 1.65% with COFINS together comprise the social contributions levy applicable to transactions.
  • IPIImposto sobre Produtos Industrializados – the federal tax on manufactured goods. The rate can be up to 300%. The ad valorem rate is set by HS product code and  can be up to 300%.  The average rate is 10%.

Originally, COFINS and PIS were business turnover taxes. They have been partially reformed for some businesses at 3.65% and 9.25% rates.

  1. 26 States
  • ICMSImposto sobre Operações Relativas à Circulação de Mercadorias e Serviços de Transporte Interestadual e Intermunicipal e de Comunicações – the tax which applies to the movement of goods, transportation, communication services and other general supplies of goods. The current tax level is between 7% and 25%. A major challenge of ICMS is that it is not levied on the destination basis like most VAT regimes; instead on the origin basis.
  1. Municipalities
  • ISSImposto sobre Serviços – the municipal tax on the provision of services. The rate ranges to up to 5%.

Brazilian indirect tax blockers

They current consumption taxes are often in conflict, giving rise to many disputes and compounding of taxes on businesses. The blockers to reform have included:

ICMS (see above) is levied on the origin basis instead of the typically VAT/GST destination basis. This encourages states to give hefty taxpayer incentives to attract businesses to relocate to their states. It also creates a major block to simplification and a single, federal tax as states firmly protect their tax shares and right to control revenues.

Services typically enjoy a lower indirect tax rate. There is tension between the municipalities and states on their service taxes, ISS and ICMS. The municipalities only charge up to 5% ISS whereas states get around 18% through ICMS. This problem is exasperated by some service companies paying 3.65% on the old combined COFINS/PIS rate.  Any combined VAT proposed would be around 12% to 16%. What is unclear is if the taxpayers will be able to pass this extra VAT onto the consumers.

States are also reluctant to give up on ICMS since services offer the major growth opportunities for the Brazilian economy. So, states are hugely incentivised to hold onto their taxes.

Possibly the biggest blocker though is legal. Reforms need constitutional amendments since they affect the states and municipalities’ rights to raise taxes and maintain their autonomy. Given the points above, gathering support for a simplified federal-level VAT, as adopted in 170 countries around the world, has proved impossible in the past 40 years.

Alternative Federal Government July 2020 proposal – replacing IPI and COFINS

To try and seize the initiative the government issued its own Bill (No. 3,887/2020, National Congress) to implement a federal VAT (‘CBS’) at 12% on goods and services. This would create a dual VAT system, similar to Canada’s GST and HST regime. Whilst complex, it would not require the states and municipalities to approve constitutional reforms.

This would exclude ICMS and ISS tax. CBS would replace the complex PIS and CONFINS federal taxes. Following this first tax reforms phase, IPI would be replaced and reformed.  The new tax, Contribuição sobre Bens e Serviços ‘CBS’, will be simpler and easier for businesses to implement and consumers to understand. It will be imposed on imports and domestic sales of goods and services. This would include intangibles imports – so B2C digital services by non-resident providers. Exports will be exempted. There would be the right to deduct CBS incurred by taxpayers. Any credits – excess CBS incurred in a reporting period – would be refunded or offset against other federal taxes.

There are also unresolved issues on the design. Firstly, whether the federal government can tax the supply the supply of goods and services at the transaction level under the constitution. It may certainly tax business turnover. Secondly on the status of digital or intangible services. This includes: downloads of music/video; app’s; e-books; online journals; software downloads or cloud based; web advertising services. Court rulings have left the status of such supplies as undefined still. Thirdly, the treatment of Financial Services is still unclear, with lots of details missing.

Blockers to Brazilian tax reforms

The Brazilian government will push ahead with CBS. But it is simultaneously courting the states and municipalities on IBS. This may require a complex and expensive compensation and equalisation funds as the tax pie is recut. COVID will not help to support this requirement.

The chief challenge then, as India found out when it took over 10 years to agree a similar consolidation of its consumption taxes, is agreeing a governance framework between the three stakeholders. This may need the establishment of an independent non-governmental organisation to keep some degree trust. In India, the tax rates, rules and regulations are governed by the GST Council which consists of the finance ministers of the central government and all the states.

Once resolved, the management of the transition on tax sharing will be agonising. Agreement around rates and revenue splits will stir-up old animosities and grudges. The combined rates between the federal and state taxes could be well over 25% based on current tax revenues.

Public service disputes aside, most of the business sectors would welcome the simplifications. However, the services sector fears increased taxes. They escape lightly under the present regime, so will canvass heavily for delays or extra reliefs.

What next?

The government certainly intends to go ahead with its 12% CBS proposal as it needs to break away from the investment-unfriendly existing archaic system in Brazil. Its proposal will put pressure back onto the states and municipalities to compromise, and possibly amalgamate their IBS plans.

But there is a lot to agree on yet, and history on tax reform between the three ranks of taxing authorities is not promising in Brazil.  However, it must start somewhere, and this is as good as it’s going to get for the time being.

 

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