A incidência do IRRF sobre remessas ao exterior no âmbito de contratos de compartilhamento de custos e despesas e os potenciais impactos advindos da alteração da legislação brasileira de preços de transferência

Abstract

The first objective of this study is to determine whether remittances of funds to a non-resident centralizing company, as reimbursement, within the scope of international cost-sharing agreements, constitute a Withholding Income Tax (IRRF) taxable event. Additionally, the study seeks to answer whether the provisions on intra-group services introduced by Law No. 14,596/2023, which modified the Brazilian transfer pricing legislation to align it with the OECD standard, impacts the first conclusion reached. To address the first question, we analyzed the income tax (IR) in light of the Brazilian Constitution (CF) and the Brazilian National Tax Code (CTN), as well as provisions in sparse legislation regarding the taxation of non-residents by IRRF. Subsequently, various manifestations of the Brazilian IRS, administrative rulings, and the position of the doctrine on the matter were analyzed. Based on this information, we have concluded that, once the requirements ordinarily pointed out by the doctrine and the Brazilian IRS as essential to cost-sharing agreements are met, the reimbursements made to non-resident centralizing companies are not subject to IRRF. Moving forward, to address the second question, we analyzed the context of the enactment of Law No. 14,596/2023, as well as the positions of the doctrine, to finally conclude that the provisions contained in this Law are not related to IRRF’s triggering events, and therefore do not influence the discussion on the taxation of reimbursements in international cost-sharing agreements.