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Legal Update

Normative Ruling RFB No. 1,781: New Regulation of Repetro-Sped, in accordance with Law No. 13.586/2017

9 January 2018
Tauil & Chequer Legal Update

On January 2, 2018, Normative Ruling RFB No. 1,781 (“NR 1,781/2017”) was published in the Federal Official Gazette, providing for rules applied to special customs regime of economic use for goods to be used in the exploration, development and production of oil and natural gas ("Repetro-Sped").

NR 1,781/2017 amended Normative Rulings RFB No. 1,415/2013 (“NR 1,415/2013”) and 1,600/2015 (“NR 1,600/2015”) as well as revoked Normative Ruling RFB No. 1,743 (“NR 1,743/2017”).

Among the main modifications brought by NR 1,781/2017, it should be highlighted the followings:

  • Express provision in sole paragraph of Article 1 that Repetro-Sped is also applied to goods to be used in research and mining activities as well as exploration, evaluation, development and production activities;
  • Maintenance of the legal provision that the customs regime for the importation of goods on a definitive basis with suspension of the payment of federal taxes and temporary admission regime for economic use with exemption from the payment of federal taxes proportionally to the time of permanence of the goods in the country may be used until December 31, 2040;
  • During the term of the scheme, it is possible to transfer the tax benefits provided in Articles 5 and 6 of Law No. 13,586/2017 for a new beneficiary qualified under Repetro-Sped, pursuant to paragraph 7 of Article 2 of NR RFB 1,781/2017;
  • The tubes foreseen in Attach II of NR 1,781/2017 are not subject to the restriction of amount up to US$ 25,000.00 for purposes of applying Repetro-Sped. However, NR RFB 1,781/2017 withdrew the previous provision of paragraph 2 of Article 3 of NR RFB 1,743/2017 which exempted from such restriction the goods in temporary admission for economic use with payment of proportional federal taxes;
  • Express provision in paragraph 3 of Article 3 to the application of goods subject to Repetro-Sped in unitized deposits or fields that share the same asset, besides the exploration blocks and production fields indicated in the concession, authorization, assignment or production sharing contracts previously foreseen in NR 1,743/2017;
  • Amendment to the wording of item IV of paragraph 4 of Article 3 in order to expressly make reference to “agreements that are executed simultaneously” in the hypothesis of goods not directly imported by the legal entity contractually responsible by the payment of fees related to rental, assignment, release, lease or bareboat charter;
  • Amendment to the wording of paragraph 8 of Article 3 in order to expressly mention that the restrictions foreseen in paragraph 4 of the same Article 3 shall apply in addition to the requirements set forth in this paragraph;
  • Amendment to the wording of item I of paragraph 8 of Article 3 related to one of necessary conditions to the application of the modality temporary admission for economic use with exemption from the payment of taxes, for purposes of inclusion the mention of non-related legal entities in the following terms: "charter and operator companies, in these contracts, are not related to concessionaires of contracting production rights";
  • Inclusion of paragraph 11 to Article 3, expressly providing for the prohibition of import of vessels designed to coasting navigation and domestic navigation, as well as for port support navigation and maritime support navigation for permanent stay in the country;
  • Article 6, paragraph 6 contain new rule. It provides that it will be granted 10 days-term to submission of pending document in the qualification request, as well as that the 30 days-term to Brazilian IRS analyze the qualification request will be interrupted as long as the complementary document´s request is not met;
  • Article 7 no longer provides for the subsidiary application of NR 1,415/2013 and NR 1,600/2015 for the procedures for the qualification, guarantee, extinction and extension of Repetro-Sped, so that NR 1,781/2017 brought several new Articles containing procedural aspects that were previously provided by these two NRs;
  • Express provision in Article 9 that the total amount of taxes levied on import with payment suspended due to the application of Repetro-Sped will be embodied in Term of Responsibility;
  • Pursuant to Article 10, it will be required the presentation of guarantee equivalent to the amount of taxes, and such guarantee could be cash deposit, letter of guarantee or customs insurance. Among other conditions, the guarantee will be waived if the amount of taxes is less than R$ 100,000.00. Articles 11 and 12 regulate the presentation of guarantee;
  • New rule in Article 11, item II, according to which, any legal entity could grant guarantee letter, if its net equity is five times higher than the value of the guarantee provided or greater than R$ 10,000,000.00;
  • Inclusion of Articles 13 and 14 related to the granting of regime in the modality of temporary admission for economic use by means of administrative proceeding previous to the register of Import Declaration;
  • Regarding the granting of the regime in the modality definitive import with suspension of payment of taxes provided by Articles 9 to 12 of NR RFB 1,743/2017, the legal provisions were maintained with some changes:
    • Inclusion of paragraph 2 to Article 15 (former Article 9 of NR RFB 1,743/2017) mentioning that the installation of goods in exploration block or production field of before the beginning of their use in the activities of Article 1st does not disqualify the allocation of goofs to those activities;
    • Withdraw of legal provision contained in paragraph 3 of former Article 10 related to the need of presentation of time charter or service agreements in an administrative proceeding separated from the proceeding of control of the regime of main asset;
  • Inclusion of Articles 19 and 20 regarding the analysis of conformity within the application of the regime;
  • In respect to the extension of term of the regime, inclusion of paragraph providing for that it is not characterized as purpose deviation, in order to charge the tax credit set forth in the Term of Responsibility, the usage of goods in an object different from the one that justified the granting of the regime since (i) the goods are applied only in the activities of Article 1st; and (ii) the beneficiary timely formalizes the change of purposes of the main asset (Article 22, paragraph 8);
  • Withdraw of paragraphs 1 and 2 of Article 15 of NR RFB 1,743/2017 related to the hypothesis of extension of regime to provision of services or time charter for purposes to compliance with a contract different from that one previously granted;
  • In regard to new admission under Repetro-Sped, establishment of requirements and formalities that might be complied with for purposes of granting of regime and withdraw of physical verification of the good, as well as documents to be attached to the administrative proceeding of control of the regime (Article 24);
  • Emphasis to paragraph 5 of Article 24, according to which the granting of new admission, in the event of expiration of the term of stay of good in the country without the extension request, is conditioned to the payment of proportional taxes due plus interest, late payment penalty and 10% penalty due to non-compliance of the term. And, pursuant to paragraph 6, in case of non-payment, it will be imposed a 75% penalty over the total or difference of the tax;
  • Inclusion of Articles 25 and 26 related to simplified procedures. According to Article 26, goods admitted under Repetro-Sped could be designed to testing, fixing, repair or maintenance, in the country or abroad, without the suspension or interruption of the term of validity of the regime;
  • Inclusion of Articles 27 to 31 related to the extinction of the application of Repetro-Sped in the modality of temporary admission for economic use with or without exemption of taxes. The extinction will be performed by means of: (i) re-export of the good; (ii) delivery of the good to the Federal Revenue Office free of any expenses; (iii) destruction of the good; (iv) transfer of good to another special customs regime; or (v) clearance for consumption;
  • In relation to the stay of goods in non-bounded location, inclusion of new paragraph (Article 33, paragraph 4) that sets forth the vessels or platforms could not remain moored in structures or anchored in locations of productions of oil and natural gas;
  • Inclusion of Articles 34 and 37 related to non-acceptance of the request or non-compliance with the regime, and Article 38 related to the possibility to present appeal against unfavorable decisions related to the regime, within 10 days;
  • In relation to final and transitional provisions, the changes were the followings:
    • Repetro´s requirements filed before the publication of NR RFB 1,781/2017 and that are pending for decision will be analyzed in accordance to the Repetro´s regulation in force at the time of the request (new rule, since NR RFB 1,743/2017 set forth a different rule);
    • With regard to transfer of regimes from NR RFB 1,415/2013 to Repetro-Sped, paragraph 3 of Article 39 establishes that a new Import Declaration shall be registered, including in the event of beneficiary substitution;
    • According to current Article 39, paragraph 6, after January 1st, 2019 (and no more January 1st, 2021, as set forth in the former NR), the remaining goods admitted under Repetro could be transferred to Repetro-Sped, pursuant to Article 27, item IV;
    • Provision of new procedures and orientations of Coana (Article 41);
    • New wording for Articles 2, 3, 4, 6, 8, 9, 15, 18, 19, 23, 24, 25, 26, 27, 31, 32, 33, 35 and 36 of NR RFB 1,415/2013, as well as inclusion of Articles 19-A and 24-A of NR RFB 1,415/2013, for purposes of compliance with the provisions of Law No. 13,586/2017 and NR RFB 1,781/2017. Taxpayers shall pay attention to such amendments with regard to existing regimes;
    • New wording for Articles 3, 56-A and 123 of NR RFB 1,600/2015, for purposes of compliance with the provisions of Law No. 13,586/2017 and NR RFB 1,781/2017;
    • Revoke of paragraph 2 of Article 7, paragraphs 1 to 4 of Article 9, Articles 22, 28, 31 and 39 and Attached IV of NR RFB 1,415/2013, and revoke of NR RFB 1,743/2017.

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