In November 2015, Brazilian lawmakers approved language of a provisional measure (“MP”), to introduce a tax amnesty program, which would allow Brazilians to bring into compliance foreign accounts and foreign assets that have not been disclosed to the Brazilian authorities.
The penalties for holding unreported foreign assets are particularly harsh: in addition to the individual income tax rate (IR), determined in accordance with a progressive scale, with a maximum rate of 27.5%, Brazilian taxpayers are subject to penalties as high as 150% (in the case of tax evasion), to an interest charge and, potentially, to criminal sanctions.
In order to encourage taxpayers to regularize their assets transferred or held abroad, the government has introduced the Special Regime for Exchange and Tax Regularization (“RERCT”). The program presents taxpayers (individual and legal entities) with an opportunity to disclose ownership of undeclared assets with the benefits of (i) reduced taxes and penalties, and (ii) a general amnesty for criminal purposes.
What assets are included in the program?
- assets held directly by the individuals;
- assets held indirectly through a trust, a foundation or a pass-through entity; and
- assets kept by an individual or a legal entity for the custody, deposit, investment, possession or property on behalf of a beneficial owner (as long as a formal agreement of deposit or custody is present).
What are the requirements to join the amnesty program?
A Brazilian taxpayer willing to participate in the program should:
- Fill out the Amnesty Statement (“Declaração Única de Regularização”);
- Amend the Annual Income Tax Return (“Declaração de Ajuste Anual” – “DIRPF”) for the 2014 calendar year to include undisclosed foreign assets;
- Amend the Report of Foreign Assets (“DCBE”) for the 2014 calendar year;
- Prepare documents proving the lawful origin of undeclared assets; and
- Instruct the foreign financial institution holding undeclared assets or funds to disclose their value as of December, 31, 2014, to a Brazilian financial institution if the total value of the undisclosed assets exceeds USD$ 100,000; the Brazilian institution will then send the information received to the Brazilian Internal Revenue Service.
What are the benefits of participating in the program?
(i) Taxpayers participating in RERCT will be subject to income tax at a rate of 15 percent and a penalty of 100 percent of the income tax due, for a combined tax and penalty burden of 30 percent. However, the value of the assets for purposes of determining the tax burden corresponds to the balance of assets held by the taxpayer on December 31, 2014; the cut-off date that also applies for the US Dollar exchange rate. Thus, taking into account the significant devaluation of the Brazilian Real against the US Dollar, the effective rate under RERCT is approximately 21 percent.
(ii) Aside from tax and penalties, the RERCT would introduce an amnesty for crimes related to holding unreported assets abroad (such as tax evasion, money laundering, etc.). Participation in the amnesty is the only way for individuals to avoid criminal sanctions.
When is the deadline to participate in the program?
The deadline for acceptance into the Special Regime for Monetary and Tax Regulation will be 210 (two hundred and ten) days from the enactment of the regulatory act by the Federal Revenue Office (expected to be published in March 2016).
What should Brazilian residents holding undeclared foreign assets do today?
Brazilian residents holding foreign assets should start gathering all the documents required under the amnesty program, with particular attention to documents proving the origin of undeclared assets. These documents are essential to avoid the exclusion from the program and likely to be audited by tax authorities.
This advice is not limited to Brazilian residents holding assets in the U.S. but it applies to taxpayers holding assets all over the world. In 2018, Brazil will start the automatic exchange of information with more than 60 countries that signed the Common Reporting Standard (“CRS”); this program will allow Brazil to access information on assets held in all those countries. Thus, Brazilian residents with undisclosed foreign assets should seriously consider applying to the amnesty program as this could prevent them tax and criminal charges.
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