The adoption of Transfer Prices (PT) by Law 14.596/2023 and the new BPTO process guidelines

The Provisional Measure 1.152/2022 (“MP 1152”) that amended the Transfer Price (PT) rules had its final text approved by the National Congress and, after presidential sanction, was converted into Law 14.596, on June 14th, 2023 (“New Legal Framework on PT”).

As already mentioned in our previous communication about MP 1152, this New Legal Framework adjusts national legislation to the standard established by the Organization for Economic Cooperation and Development – OECD and the main changes that will reflect on the scenario of technology transfer agreements are the following:

1. The mandatory adoption, as of January 1st, 2024, of the Transfer Price rules for establishing the deductibility limits applicable to technology agreements, except  in the current year of 2023, when companies may still choose for their immediate application or not;
2. Adoption of the Arm’s length Principle for controlled transactions, giving more freedom for the negotiation of the contractual conditions;
3. Revocation of the pre-set maximum deductibility limits established in Ordinance 436/1958, upon the adoption of the Transfer Pricing rules; and
4. Revocation of the need to record/register technology transfer agreements with the BPTO for the purpose of obtaining tax deductibility for the payments provided therein.

Regarding this last item, we emphasize that, for legal certainty, it is prudent to wait for an official guidance from our Internal Revenue Service (IRS) on the matter, remembering that the need to record/register technology transfer agreements before the BPTO is still mandatory for allowing such agreements to be enforceable against third parties. This is because article 211 of our Brazilian Industrial Property Law is still in force, which expressly establishes that: “The BPTO will register agreements involving technology transfer, franchise agreements and similars to produce effects in relation to third parties.”

Also, Ordinances 26 and 27/2023 were published by the BPTO during last week and establish new guidelines on the administrative process and examination related to the registration and recordal of technology transfer agreements, aiming to bring greater flexibility, efficiency and less bureaucracy. We highlight below the main changes brought:

(i)        Aproval: BPTO will henceforth accept the registration of know-how temporary license agreements, in addition to the know-how transfer agreements that are already accepted;
(ii)       Exemption from submitting the form called “Ficha Cadastro” by the contracting local companies;
(iii)      Authorization for the payment of royalties involving the license of use of Brazilian pending trademarks which registrations have not been issued yet;
(iv)      Exemption from including legal representatives initials and the signature of 02 (two) witnesses in the documents presented for recordal/registration purposes;
(v)       Exemption from presenting bylaws and statutes and their respective amendments by local companies; and
(vi)      Need to present an updated document that proves the applicant as a beneficiary of obtaining special discount when collecting BPTO’s official taxes, whenever applicable.

For further information or clarification, please do not hesitate to contact us by mail@kasznarleonardos.com.