Finocchio & Ustra Sociedade de Advogados | View firm profile
In the last few decades, the Organization for Economic Co-operation and Development (OECD) has gained greater prominence in the international economic scenario, especially in the Brazilian panorama, as there has been a considerable rapprochement between the Country and the Organization. Although Brazil has been engaged with the OECD since 1994, it became a key partner only in 2007. That was when the Organization expanded its list of partners to achieve greater integration and intercontinental cooperation, strengthening its ties with “emerging” countries such as India, China, South Africa, and Brazil.
It is noteworthy that as of 2007, Brazil has stood out as one of the most engaged countries in the commissions and discussions hosted by the Organization, especially regarding issues related to the implementation of pillars one and two, the Base Erosion and Profit Shifting(BEPS) measures. Brazil has been one of the countries most interested in promoting changes in the global tax scenario.
As a general rule, the bond between the countries and the OECD is subject to a formal invitation from the Organization and the consequent fulfillment, by the invited countries, of a series of guidelines, internal alignments in political, economic, and social topics, legislative adjustments, adaptation to tax standards, etc. Therefore, to become a formal member of the OECD, the country must meet several internal policies and guidelines.
Brazil received a formal invitation to join the OECD on January 25th, 2022 and began adapting to the standards and conditions set out in the accession roadmap released by the OECD on June 10th, 2022. Despite the numerous requirements, Brazil was already aligned with most of them, presenting advanced convergence with the Organization. By the time of the formal invitation in January of this year, it had adhered to 103 of its 251 normative instruments.
It is worth mentioning that, among the requirements for accession, there are binding and non-binding impositions. The non-binding ones do not prevent the country from joining the Organization but aim to harmonize the countries’ policies in the accession process with the OECD standards, facilitating the integration of countries.
From a fiscal and tax point of view, the main requirements are linked to the Committee on Fiscal Affairs, which is one of the agendas to be followed by the countries in the accession process. In summary, the aspects that draw the most attention are linked to the objectives of:
- Aligning transfer pricing (TP) to the international model;
- Reducing or eliminating international double taxation;
- Promoting the sharing of tax information and combating tax crimes.
By comparison, it is possible to check that the TP legislation in Brazil has unique characteristics that are very different from those used by the countries linked to OECD. Briefly, the member countries observe the Arm’s Length Principle (ALP), which establishes that the price agreed upon by the parties must be similar or identical to the value applied in a similar transaction by other non-related parties.
Brazil deviates from the ALP and has strict calculation methods imposed by the legislation. This situation leads to fixed profit margins for imports and exports, disregard for market conditions, the inexistence of proper instruments for analyzing financial operations, in addition to interest and incompatibility with royalty laws. Thus, these characteristics result in many loopholes and hypotheses of double taxation (or double non-taxation), increasing cases of tax uncertainties, which generates incompatibility with the OECD standards.
Concerning tax treaties, despite the numerous conventions signed, Brazil has stood out as a country that poorly observes the agreements, which harms international relations and intensifies the difficulties for inbound investments. Hence, Brazil will start adapting to international standards by internally aligning with the points set out in the OECD’s Model Tax Convention.
Moreover, because of the new global discussions on how to reform international taxation of income, Brazil must adapt to the BEPS Plan – a plan consisting of multilateral action to minimize offshores and transfer corporate profits to countries with low taxes.
As a direct result of the BEPS, the OECD created the Inclusive Framework (IF), a group based on two pillars: Pillar One and Pillar Two. Which, respectively, aim to reformulate the division of the right to tax, emphasizing places where consumer markets are centralized. They also seek to establish a mechanism for calculation and collection so that multinational companies (with consolidated revenues of at least EUR 750,000,000.00) are required to pay income tax of at least 15% globally.
Furthermore, with the OECD’s incentive to reduce the tax burden on international remittances and capital flows, it is noted that Brazil will have to reformulate its rules regarding the levy of taxes on such remittances in order to reduce the risks, uncertainties, double taxation, and to comply with the OECD’s International Value Added Tax/ Goods and Services Tax (VAT/GST) Guidelines.
Brazil’s adhesion to the Organization also requires other adjustments, such as foreign investments, corruption mitigation, corporate governance, environmental policy, regulatory policy, educational policy, employment, labor, and social affairs.
Therefore, Brazil is seeking to improve its business environment, launching itself as a new player in the world trade scenario, while the OECD member countries and investors will see it as a country that is more integrated into the world economy and able to compete in the foreign scenario