The general tax rule to aeronautics products and aircrafts as well, prescribed under the South Common Market (Mercosur) statutes an External Common Rate to the products and aircrafts imported by the companies and incorporations established in the Mercosur countries. For those goods, the tax rate is zero percent, and each country has your own internal rule to apply this benefit. In this paper we will inform how the Brazilian taxpayers can use correctly these tax benefits.
In general tax, is a sum of money demanded by a government for its support or for specific facilities or services, levied upon incomes, property, sales, etc. It also can be a rate or sum of money assessed on a person or property for the support of the government and commonly levied upon assets or real property (property tax), or income derived from wages etc. (income tax), or upon the sale or purchase of goods (sales tax).
In particular the import tax is sum levied upon the foreign goods and tourist baggage entered in Brazil. For foreign goods the tax base is the customs value and the tax rate is defined in the Mercosur External Rate.
As mentioned in Assunção Treaty, since 01/01/95, the four Mercosur States adopted an External Rate, based on Mercosur Common Nomenclature for goods (NCM).
According to the legal directive, since 1992, the External Common Rate must encourage the competitiveness into the States Parties and their traffic customs levels should contribute to avoid the existence of oligopolies or antitrust structures. These are the requirements: a) few number of tax rate; b) low dispersion; more homogeneity as possible for effective promotional tax (exportation) and for effective protection (importation).
In Brazil, the External Common Rate began in December, 23th, 1994 by Executive Order number 1.343.
Since of that, many statements were ruled, including a new way to uniform the description of goods purchased by companies, the description as well informs the administrative treatment regarding import products and also provides all rate taxes levied upon to the purchaser company.
For the aerospace sector, there is a complete list which describes the parts and aircrafts components that do not to pay the import tax, but not only parts and components, the aircrafts itself imported by Brazilian companies will not suffer the tax assessment.
This tax exemption is also applied for flight training devices and its parts. The importer must need the authorization provided by the State Party, otherwise it will not be able to use this tax benefit.
The zero tax rate applies to aircrafts products assembled with technical specifications and according to the international aeronautical standard rules or to those their parts and components used in their manufacture, repair, maintenance, transformation, modification or industrialization.
The Brazilian Authorities also provided a list in which the products must be described and the importers must give and affidavit to confirm the products destination specially if they will use in the aeronautical industry.
Basically, there are two Resolutions that rules this benefit, the Brazilian International Trade Chamber Resolutions 78 and 55.
Both of them are in terms with the international agreements assigned by the Brazilian Authorities in Mercosur ambit.
There are some requirements to be accomplished. First, the importation does not demands any public or special licenses and it has made direct or indirect by a legal entity with public certification to manufacture, to repair, to maintain, to transform, to modify or to industrialize aircrafts products. This public certification will be awarded by the Brazilian National Civil Aviation Agency.
In some cases the Ministry of Defense would give a permission which will be used to reduce the import tax rate as well. This allowance could be applied to some public service corporation or to air certified carrier.
Unfortunately, the Brazilian International Trade Chamber Resolutions does not rule which are the technical and according to the international aeronautical standard rules, or even the real authority – national or international - that will provide a valid certification.
This legal gap powers the Internal Revenue and its agents with an unfair discretion. There is no section about who is considering the real taxpayer, the importer itself or someone else.Although, the Brazilian Internal Revenue considers that the importer will get the zero rate only if the product imported be applied in your own industrial facility, if the importer buys an aircraft product just to resale, so the benefit must be canceled.