Tributação de resseguros no Brasildiscussão dos efeitos práticos após a solução de consulta n. 62/2017

Resumo

After the opening of the reinsurance market under Complementary Law 126/2007, three categories of reinsurers were created in Brazil: local, admitted and occasional. The last two were formed by foreign companies that expanded into Brazil. As such, there was a lot of uncertainty regarding the tax treatment that should be applied to international reinsurance transactions, as follows: reinsurance premiums, reinsurance commissions and claims (indemnities) paid. The market was then self-regulated and began to apply and interpret the tax rules, in accordance with the regulatory insurance and tax laws applicable at that time. In 2017, the Federal Tax Authorities (RFB) issued the Cosit Advance Tax Ruling (ATR) nº 62, which basically confirmed the tax treatment that the market was practicing for the local and the occasional categories, but innovated by equating the admitted category to the local reinsurers for tax purposes. The reason for such an equation was based on SUSEP's regulatory requirement for admitted reinsurers to establish a representation office in Brazil, and to grant acceptance and binding powers to a local attorney-in-fact. As a result, it was understood that such activity would be equal to the local reinsurer business. The practical outcome of this conclusion is to consider the foreign entity with a Permanent Establishment (PE) tax treatment, therefore applying local tax rules to them, which imply in a substantial increase in the tax burden, as well as a stricter and more costly accounting, financial and operational framework. This ultimately shall result the insurance and reinsurance market to be considered unfeasible in Brazil, and might result in a potential lack of coverage for Brazilian insurance risks. The determination of tax treatment to the foreign company cannot be carried out simply by legal and formal presumptions; rather, it must require a concrete and factual examination of whether, in essence, the decision-making of risk acceptance, underwriting and claims payments are being effectively executed by the representation office in Brazil, and not merely by virtue of formal documents. The activities of the representation office must not be confused with those of the foreign admitted reinsurer, since there have full autonomy, and operational, corporate governance and tax independency in each entity. Although it has the power to sign contracts, if such powers are not executed, the risk of PE is mitigated. A clear demonstration of the absence of decision-making power of execution and signature of contracts and the overall review of internal processes, with clear definition of the activities that can be performed by the representative office is a fundamental evidence to rule out the potential tax assessments and administrative and judicial disputes.

Ficha do documento

Tipo

Dissertação

Ano

2018

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/22067

Temas

Finanças PúblicasGovernança

Palavras-chave

Reinsurance marketAdmitted reinsurerRepresentative officePermanent establishmentDecision-making powerMercado de ressegurosRessegurador admitidoEscritório de representaçãoEstabelecimento permanentePoder decisórioDireitoResseguroContabilidade tributáriaSeguros - Brasil - Legislação