quinta-feira, 29 de novembro de 2012

A Roundabout Route To Brazill - Palisades Hudson Financial Group

A Roundabout Route To Brazil « Palisades Hudson Financial Group
by Larry M. Elkin, CPA, CFP® Palisades Hudson Financial Group.


CAMPINAS, Brazil – It took nine hours to fly from Newark International Airport to São Paulo, and another 90 minutes to drive to this city of 1 million for a brief post-Thanksgiving business trip. But my journey actually began weeks ago, in an office tower in downtown Miami.
My previous Brazilian visa had expired not long after my last trip, forcing me to go through the costly and cumbersome application process for the fourth time since I began visiting 15 years ago. (Brazil’s multi-entry tourist and business visas are typically valid for five years.)
First, I had to go to the consulate nearest my principal residence, in Fort Lauderdale, which is why I went to the consulate in Miami. Applications are accepted by mail, but the turnaround time is at least one month, which was too long for this trip. So I made sure to show up at the consulate at the requisite hour – applications are accepted only between 10 a.m. and noon on weekdays – with my U.S. passport, a set of recent photos, a letter from my firm explaining the purpose of my trip and $161 in cash. I fed the cash into an ATM-like machine in the consulate lobby. The machine regurgitated a receipt, which completed the necessary paperwork.
After dropping off the papers, I then had to wait five days before returning to the consulate, precisely in the designated time period of 3-4 p.m. on a weekday, to pick up my passport with the newly affixed visa.
The entire process is a pain in the tuchas, a word which, while neither English nor Portuguese, is understood by speakers of both. It would be easy to blame the Brazilians for this inconvenience. It would also be wrong.
My need for a visa, and the $161 price tag (less a $1 dollar service fee to the Banco do Brasil), is the result of policies rooted in Washington, not Brasília. If I were visiting Brazil from any European Union country, or from a long list of other nations including Israel, Romania, Russia and Turkey, I could have entered with no visa at all. The United States, however, has refusedto include Brazil in its own visa-waiver program, which allows leisure and business travelers to come to America for up to 90 days with only their home country’s passport, as long as they do not accept employment during their visit. Brazil’s visa policy is simply a mirror of our own. As soon as we drop our visa requirement for Brazilians, Brazil will open its borders to Americans.
From an American viewpoint, Brazil is easily the most politically compatible of the four rapidly developing BRIC countries. I have written here in the past about the corruption that remains prevalent in the other three: RussiaIndia and China. Brazil also has a Gross Domestic Product of $2.2 trillion, making it the sixth-largest economy in the world. But despite Brazil’s proximity compared to the growing Asian economies, the United States continues to hold the country at a diplomatic distance.
Our visa requirement is supposed to help us keep tabs on travelers who might illegally overstay their welcome in the United States. Brazilians, however, are not overly eager to put down roots in the north. As Paulo Sotero, director of the Woodrow Wilson Center’s Brazil Institute in Washington, told Time, Brazilians prefer their native soil when it comes to long-term residency. The United States “is considered a less attractive place for economic migrants in Brazil, which has almost full employment and a lot more economic opportunity,” Sotero said.
Brazilians come to America to spend money far more often than to make it. In 2010, 1.2 million Brazilians visited the U.S., putting Brazil fifth worldwide in terms of the number of tourists it sends to our shores. Those Brazilian visitors collectively spent $6 billion in the States.
Two years ago, I took my family along for my first vacation trip to Brazil. We had a memorable two weeks seeing the sights in Rio de Janeiro, enjoying the beaches near the northeastern city of Recife and exploring a bit of the Amazon rain forest. As our trip demonstrated, Brazilians and Americans have similar reasons for visiting each other’s countries: to sightsee, to relax, to shop and to dine in venues that can hold their own with rivals anywhere in the world.
When it comes to doing business, however, there are other obstacles that are even more of a hassle than the visa requirement: The U.S. has neither a tax treaty nor a free-trade agreement with Brazil. Both mechanisms play crucial roles in facilitating cross-border business in the 21st century.
Neither the U.S. nor Brazil is categorically opposed to such treaties. For trade, Brazil is a member of the Mercosur bloc (Mercosul in Portuguese) with its neighbors Uruguay, Paraguay, Argentina and Chile, as well as Venezuela. We are part of the North American Free Trade Agreement with Canada and Mexico, and we have a variety of bilateral trade treaties as well. On the tax side, Brazil has agreements with 28 countries, and the U.S. has even more. Many countries, including our NAFTA partners Canada and Mexico, have tax treaties with both the U.S. and Brazil. Brazil is, in fact, the only nation in the world with an economy of $1 trillion or more with which the U.S. lacks a tax treaty. But despite calls for stronger ties from the administrations of both President Obama and his Brazilian counterpart, Dilma Rousseff, no agreements have emerged.
Given our visa and tax treatment of Brazil, it is no surprise that as Brazil’s role in the world has grown, America’s role in Brazil has not. In 2009, China became Brazil’s top trading partner – a position Americans had previously held for eight decades. Meanwhile, the U.S. continues to impose tariffs on two key Brazilian exports: orange juice and ethanol. Brazil, in turn, has announced an array of investment and tax incentives to develop its domestic automobile industry, seeking to reduce the number of cars it imports and, by extension, to cut down on a key area of trade with the U.S. Even so, two-way trade between Brazil and the U.S. totaled $74 billion in 2011, making Brazil our eighth largest trade partner.
Brazil is not likely to ever account for as much of our foreign trade as countries such as Canada or China, nor is it likely ever to be as much of a political and military ally as countries such as the United Kingdom, Israel and Japan. It definitely will never be as physically close a neighbor as Mexico. But none of this means that we shouldn’t strive for a stronger, diplomatically closer relationship.
When it comes to deciding where to do business, shared fundamental values ought to be as important as economic potential. Brazil happens to offer a healthy measure of both.

sexta-feira, 23 de novembro de 2012

A comparative analysis of the patent systems of the BRICS countries

Nice presentation from the Brics Policy Center:


http://bricspolicycenter.org/homolog/arquivos/Apresentacao112.pdf

terça-feira, 20 de novembro de 2012

Brazil: A User’s Guide


This post is not the complete legal guide to doing business in Brazil (such thing does not exist and would be outdated in 24 hours if it did).

It is the deliciously humorous article published by Granta magazine, about what Brazil looks like from an extraterrestrial pespective.

It is very funny, specially for the foreigners who have lived or visited Brazil, and who will be able to understand all the jokes.

Enjoy...

Following on from the first and second dispatches from the newly appointed Ambassador to São Paulo back to his home planet, Juan Pablo Villalobos offers a guide to surviving life in Brazil.

Identity crisis (1). São Paulo and Manaus are as similar as Wales and China. Comparing Rio de Janeiro and Palmas is like comparing a shoe with a rocket. Porto Alegre and Rio Branco like a frog to a cup of coffee. Belo Horizonte and Salvador like an Other-Human hair to a constellation. The sum of these differences is called Brazil.

Tips that can save your self esteem (1). You don’t want to play in that football game on the beach, believe me.

Bureaucratic stuff (1). The Brazilian banking system was created by a Czech writer called Franz Kafka.

Ways of saying Hi (1):
– Hi, all ok?
– All ok and you?
– All ok.
– Then it is ok.

Security controls. If you want to enter to a condominium, relax. Have you ever gone to Pluto with a Green Planet passport?

For the rest, go to Granta's website.


BRAZILIAN JUDICIARY EMERGES STRONGER AFTER "CASH FOR VOTES" CORRUPTION TRIALS.


I suggest  a very good article by Mr. Noronha, an outstanding Brazilian lawyer, founder of Noronha Advogados, a Brazilian law firm with a truly international practice (they have office in London, Shangah and Lisbon, among other places).

 I had the honor to be a member of Noronha Advogados a few years ago.

The article comments on the Mensalão scandal.

BRAZILIAN JUDICIARY EMERGES STRONGER AFTER CASH FOR VOTES CORRUPTION TRIALS. 

Twenty five people have been found guilty earlier October 2012 by the Brazilian Federal Supreme Court (STF) in the trials of the accused of vote buying in the Brazilian Federal Congress. Amongst the defendants, there were some of Brazil's top politicians, such as José Dirceu, President Lula's chief of staff between 2003 and 2005, and José Genoíno, president of the Worker's Party. The 11 judge's members of the panel were in their majority appointed by President Lula, as was the General Prosecutor, responsible for pressing the charges.

Debt Collection in Brazil - Non Receipt of Overdue Payments



Note: This is a reply I've sent to a client many years ago.  The client sold DVD players to Brazil, but did not receive payment. 

The client neither elected arbitration in his agreement with the Brazilian party, nor asked for a negotiable instrument as an additional collateral for the payment.   Mortal errors to his claims.  

Dear Mr. Goodwill

 After going through your case, I'm happy to present you some considerations.

Please allow me to make a brief introduction to the relevant aspects of your case:

Had you a negotiable instrument signed by the importer, such as a promissory note, it would allow us to file a debt collection lawsuit (execução). This would take less time,  2-3 years maybe. But, unfortunately, this is not the case. 

In your case, we must file a lawsuit in order to obtain a judicial declaration of the debt, and only later move on to the phase of debt collection.

 Such court procedures in Brazil can, unfortunately, take long years to be completely settled. In the Sao Paulo State, above all, court procedures usually take at least 3 years, even the relatively simple ones. Usually, they will take no less than 5 years.

 Thus, I believe that the amicable composition is the best option right now. This can be achieved through negotiation, with the aid of some pressure mechanism made available by Law, such as the public registration of the company's debt before public notaries (Protesto).

 It should also be noted that many Brazilian companies have defaulted their import payments due to the Real (the Brazilian currency) devaluation before the dollar.  

 After all, the dollar appreciation causes the merchandise to become more expensive and makes the taxes due over the imports automatically become higher.

 This has lead many buyers to simply leave the goods at the port, unclaimed. 

 If this is the situation, the debt collection may be simpler, for we may obtain a warrant to seize the goods at the port.

 On the other hand, if the default has been made on purpose or due to financial difficulties, then the Judicial Claim of the debt may be the next necessary step.

 After the initial contact with the debtor, we will have a more clear definition of which situation they are in.  Even if we choose the amicable way as a starting point, your right to claim the debt before the courts remains unaltered.

 In case you have any other doubt, please contact me through e-mail or phone. 

Adler

Reader asks: Can a Foreigner be the administrator of a Brazilian company?



Adler,

Bom dia. 

Can an American with a pedido de permanência (permanent visa request filed) and a carteira de trabalho (a Brazilian work document)  assinada (signed by and employer) open an S.A. in Brazil on behalf of an American company?

Jack Sparrow
___________

Dear Jack Sparrow,

Thank you for the message.

You may be a partner (shareholder) of the company, or act as a representative to the foreign partners.
However, before your permanent visa is actually granted, you cannot act as an administrator (director) of the company.  (By the way, you also shouldn't be able to work before the visa is granted. How come you already have a work document ["carteira de trabalho"]?)

If your pedido de permanência were derived from marriage, the situation would be a little uncertain (the receipt of the request, in case of marriage, grants some special rights). But, being conservative,  I'd still say that you wouldn't be able to be an administrator until the permanent visa is definitively issued.
At the end of the day, I believe your worries are unfounded.

The most usual solution for this situation is to hire a local accountant, lawyer or executive (with a business major) to act as a provisional administrator, while you, as the foreign partner's representative, would retain the powers to approve the administrator's decisions on the most relevant subject.
Please share your plans with me, so that I can offer you better guidance.

 I stress that you need a lawyer or an accountant to help you with this operation, since the help of either of them is mandatory when incorporation a new company.

 Many foreigners are prone to doing things by themselves in Brazil, which is not always possible, and never advisable. (I know that this advice may seem a little biased, but you will have to trust the all the other foreigners writing about this at internet forums like gringoes.com, etc.)
Regards,
Adler
_____
Adler,
Thanks.  However, I would be able to be hired as the general manager if I have work authorization in Brazil, correct?
Jack Sparrow
_______

Dear Jack,

Not exactly.

Your work authorization is valid exclusively for the company that hired you first. You would have to apply for a change of employer before becoming the administrator of a company (this is my interpretation of the law. I do recognize that the Commercial Registry might miss this detail and end up allowing you as an administrator. But this could later be considered as reason to cancel your visa).

If the investment is of at least 600 thousand Brazilian Reais, you can obtain a Director's Visa, which is a kind of permanent Visa.  This route is faster and more certain.
Regards,

Adler

Can the matrix company pay for the goods purchased by the Brazilian subsidiary/affiliated company?


One more of my series of e-mail replies:

Hello,

I was doing a search on a type of tax in Brazil, and I came across your blog. It is very helpful-- thank you for sharing! I have a tax question that I can't seem to find the answer to, and I was hoping that maybe you knew the answer. I left this question as a comment to one of your blog entries, but I also thought I should email just in case.

I am trying to find out the tax consequences for the following scenario:

A U.S. company has a subsidiary located in Brazil. The subsidiary engages in some sort of sales transaction with a vendor (say, for office supplies), also located in Brazil. The goods purchased are to be used by the subsidiary located in Brazil, but the goods will be paid for by the U.S. parent company.

Do you have any idea what the tax consequences would be for the U.S. parent, Brazilian subsidiary, and vendor on this type of transaction? I am aware of taxes for a loan from a foreign company, but I need to know the tax consequences for a transaction like the one above that doesn’t involve a loan.

Thank you very much for your help!
Best Regards,

Isolde

_________________


Dear Isolde,

Thank you for your comments.

I have replied your answer in the blog, but thought that a direct email would also be a good idea.

The right thing to do is to send the money directly to the Brazilian subsidiary. The money shall be declared before the Brazilian Central Bank either as capital or as a financial loan.

For a series of reasons, a local vendor in Brazil cannot receive foreign payment for goods sold inside Brazil. In this case, the vendor would be obliged to export the goods, which is not what you want.

I would be glad to help you with the capital registration.

By the way, what kind of subsidiary is that? A Brazilian company with foreign capital?


Warm regards,

Adler

___________


Adler,

The Brazilian company is a wholly owned subsidiary of a foreign parent. Does this answer your question? The foreign parent wishes to directly pay a vendor in Brazil who provides goods or services to the wholly owned Brazilian subsidiary. If this is not permitted, can you please explain why? 

Thanks again for your help!

Best,

Isolde

__________


Dear Isolde,

This is, how can I say, legally awkward due to tax declaration procedures.

In your example, the supplier in Brazil would be donating goods to a local company and receiving a payment from abroad.

Or, in other terms, the local supplier would receive payment from abroad with orders to deliver the goods to a local company.

The local supplier would have to issue an invoice. The invoice cannot be issued against the local company, because it is not the real buyer. It would have to be issued against the foreign company.

If the foreign company orders the delivery to be made in Brazil, then OK, this might work.  But it would indicate that the foreign company has an office in Brazil, which is not the case.

Also, how would the local subsidiary declare this in its books? As donation? It cannot be declared as foreign capital, because it has not come though the Central Bank.

On the other hand, declaring it as a donation is incorrect (not true), because I'm sure the matrix company will declare that this expense is an investment.

So, to sum it up: this might work to purchase 2 thousand dollars in office supplies once, but it is a completely irregular arrangement that cannot be used for regular operations, or at all.

Regards,

Adler

__________


Adler,

I am just getting your emails. Thank you very much for your help.

I greatly appreciate it! I have forwarded this information to my boss, along with your contact information. Because there are many complications, I am not sure if he will decide to pursue the situation further, but if he does, he may be emailing you. 

Thank you again!

Take Care,