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The new treaty defines permanent establishment and sets out withholding tax rates for dividends, royalties, interest and technical service.

The treaty for the avoidance of double taxation between Brazil and Switzerland (Treaty) has been ratified and promulgated. The new tax treaty between Switzerland and Brazil will be effective as from January 1, 2022.

Detailed discussion

The Treaty was approved on March 6, 2019, by the Swiss Parliament and on February 25, 2021 by the Brazilian Senate.¹ On June 9, 2021, Decree No. 10.714, signed by the President of Brazil, was published promulgating the Treaty, which will become effective January 1, 2022.

The Treaty improves the Brazilian business environment by facilitating investments from Switzerland into the largest economy in Latin America. Like Brazil's business environment, Switzerland's business environment is improved because the Treaty facilitates investments from Brazil into Switzerland.

The Treaty provisions are generally aligned with the standards of the United Nations (UN), and the Organisation for Economic Co-operation and Development (OECD), as well as the OECD's Base Erosion and Profit Shifting (BEPS) action plans.

The Treaty provides a welcome addition for both Brazil and Switzerland's double tax treaty (DTT) networks. Brazil will now have 35 DTTs in force while Switzerland will have more than 100 DTTs worldwide, including those with Latin American countries such as Argentina, Chile, Colombia, Ecuador, Mexico, Peru, Trinidad and Tobago, Uruguay and Venezuela.

The key aspects of the Treaty are as follows:

1. Persons covered
• Applies only to persons who are residents in the Contracting States
• Limits the use of transparent entities to unduly obtain treaty benefits
• Treats certain collective investment vehicles from both Contracting States as an individual for treaty purposes
2. Taxes covered        
• Federal income taxes of both Contracting States, including Social Contribution Tax (CSLL), and Swiss cantonal and communal income taxes
3. Residence
• Effective place of management as tie-breaker rule
4. Permanent establishment definition
• Fixed place of business through which the business of an enterprise is wholly or partly carried on, corresponding to the definition of the OECD's Model Tax Convention

Additionally, the Treaty includes a most-favored-nation clause, which allows the withholding tax rates for interest, royalties and technical services in another treaty into which Brazil or Switzerland enter to apply to the Treaty between Brazil and Switzerland if those rates are lower than the rates in the Treaty. The Treaty also eliminates double taxation as follows:

• Brazil — Credit method under which Brazilian residents would be entitled to claim a credit for the income tax paid in Switzerland
• Switzerland - Exemption method in general and credit method for dividends, royalties, interest and technical services²

The Treaty includes provisions for Mutual Agreement Procedures (MAP). The Treaty requires the case to be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention. The Treaty also has an anti-abuse clause generally aligned with the principal purpose test (PPT).

The provisions of the treaty should not prevent the application of anti-avoidance rules imposed by any of Contracting State.

The withholding tax (WHT) Treaty rates are as follows:

Although the Treaty does not provide a 0% rate, dividends paid by a Brazilian entity after 1996 are not subject to WHT under current Brazilian tax Legislation, regardless of the location of the beneficiary. That being said, Switzerland levies WHT on dividends at a domestic rate of 35%, which is thus reduced by the Treaty.

Several tax reform proposals are under discussion in Brazil, which could establish a WHT on dividends paid to individuals and nonresident shareholders at a 10% or 15% rate.

Switzerland is not considered a low-tax jurisdiction under Brazilian law. Certain taxation regimes in Switzerland, however, could be considered a privileged tax regime (PTR) for Brazilian tax purposes, even though they fully align with the OECD BEPS standard.

The patent box or research and development super deduction, for example, could be deemed a PTR to the extent those regimes would cumulatively (i) be governed by a Swiss tax ruling; and (ii) lead to a Swiss combined (federal, cantonal and communal levels) tax rate equal to or lower than 20%.

When Swiss tax regimes are deemed to be PTRs for Brazilian tax purposes, Treaty benefits will not be adversely affected. However, stricter deductibility requirements for thin capitalization and transfer pricing purposes will still apply.

Implications

Multinational groups doing business in Brazil and with a nexus in Switzerland and vice versa, should review their current situation to evaluate the available Treaty benefits. Likewise, groups should review if any actions are needed to mitigate possible adverse consequences from a PTR qualification.

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ENDNOTES

¹ See Tax Alert 2021-0500.

² Brazil does not currently impose withholding tax on dividends.