At the beginning of December, Alexandre Padilha (Institutional Relations) said that the text was one of the government's priorities
A Chamber of Deputies approved on Wednesday (Dec 13, 2023) a bill that creates infrastructure debentures, to be issued by public service concessionaires. The proposal also changes rules for investment funds in the sector. The text will be sent to the president for sanction Luiz Inácio Lula da Silva (PT) with Senate amendments partially approved by deputies.
The text approved on Wednesday is a substitute of the rapporteur, deputy Arnaldo Jardim (Cidadania-SP), for PL (bill) 2,646 of 2020, by the deputy João Maia (PP-RN) and others. The text allows infrastructure debentures to be issued by concessionaires, permission holders and those authorized to operate public services.
On December 5, the Minister of Institutional Relations, Alexandre Padilha, stated that the text that creates infrastructure debentures was one of the government's priorities in Congress. This week, the payment of parliamentary amendments reached a new peak. According to data from the Siga Brasil system, the Lula government disbursed on December 11th and 12th a record for just 48 hours of R$9.9 billion in amendments to the Budget proposed by deputies and senators.
Debentures are bearer securities issued by companies with a promise to pay interest after a certain period, negotiable on the market.
The resources obtained must be applied to investment projects or intensive economic production in research, development and innovation in these areas. The debentures must be issued by December 31, 2030 and follow rules changed by the project in the laws on investment funds in the sector.
The list of areas in which resources can be applied will be a regulation.
These bonds may contain an exchange rate variation clause and may even be issued by direct or indirect controlling companies of the concessionary companies.
The text also refers to the regulation the definition of the criteria for classifying projects in the sectors that it considers to be priorities. This regulation may also stipulate other criteria to encourage initiatives that bring relevant environmental or social benefits, such as priority processing and monitoring of projects through self-declaration by the project holder.
“The project establishes modernity so that deadlines can be met and so that the process of deliberating investments in debentures can be carried out in a less bureaucratic way”stated the rapporteur, deputy Arnaldo Jardim.
The author of the project, deputy João Maia, stated the expectation that 2023 will close the year with an investment of R$60 billion, “but studies show that R$420 billion would be needed”.
“We need the expansion of new projects to generate income, employment and taxes”he stated.
“Private investment in prisons, schools and health centers is not a left-wing banner. The government cannot serve these interests“, said the deputy Glauber Braga (Psol-RJ), criticizing the tax exemption granted to debentures.
Also against the text, the deputy Fernanda Melchionna (Psol-RS) considered that there was misuse of public resources with the incentive. “At the same time, incentivized debentures drain public resources that should be directed to the vast majority of the people and grant tax benefits to companies and banks”he said.
TAXATION
As for tax on income obtained by the investor, buyer of the debentures, the rule for fixed income will be used. Currently, these investments are taxed with a progressive table: 22.5% up to 180 days; 20% from 181 to 360 days; 17.5% from 361 to 720 days; and 15% from 721 days onwards.
Instead of guaranteeing exemption from IR (Income Tax) for foreign investors, the rapporteur opted to apply a rate of 15%.
One of the approved amendments adjusts the taxation to be charged when the foreign investor is resident in a country with favorable taxation. Instead of being charged in the range of 15% to 22.5%, the tax will be 25%, in line with international adjustments of which Brazil is part of to avoid tax evasion.
If the buyer is a legal entity, the tax will be considered an advance on the tax due in each IRPJ (Corporate Income Tax) calculation period and definitive in the case of an individual or micro or small business participant of Simples Nacional.
However, this taxation regime does not apply to banks and other financial institutions, which must integrate profits into their gross income, including those obtained through funds that purchased these debentures.
GATED COMMUNITY
When debentures are purchased by investment funds in a closed condominium, the IR will be 10%.
Among these types of funds, the project mentions the FIP-IE (Investment in Participations in Infrastructure) and FIP-PD&I (Investment in Participation in Intensive Economic Production in Research, Development and Innovation) funds.
INCENTIVE TO THE ISSUER
The text allows the issuing company to deduct from the IRPJ and CSLL (Social Contribution on Net Profit) calculation basis the interest paid upon maturity of the debenture.
In addition, you can enjoy an additional deduction of 30% of the interest paid for the entire year. As for the duration of this benefit, after the approval of another amendment by the senators, the final text establishes that it will follow the provisions of the LDO (Budget Guidelines Law) for each year.
In the Chamber's text, the term was fixed at 5 years, counting from the date of publication of the future law and, every year, the LDO extends the benefits for another 5 years.
RESTRICTIONS
These debentures, however, cannot be purchased by people linked to the issuer, such as controllers or shareholders with more than 10% of the shares with voting rights, administrators and spouses and relatives up to the 2nd degree.
As for companies, those that are affiliated, controlled or controlling cannot purchase debentures. For funds, the restriction applies to those who have shareholders with more than 10% of the shares under the control of one of the companies or individuals prohibited from purchasing the securities.
Anyone who fails to comply with purchase prohibitions will be subject to a fine of 20% of the value of the debenture.
In cases of intent, fraud, collusion or simulation, when the buyer is resident abroad, or even through tricks regarding the buyer's legal form, the issuing company is jointly and severally liable for the fine if the prohibitions are violated.
CURRENT FUNDS
PL 2,646 of 20 reformulates investment rules for investment funds in closed condominiums to allow the application of their resources in concessionary infrastructure projects. This reaches the Investment in Participations in Infrastructure and Investment in Participation in Intensive Economic Production in Research, Development and Innovation funds.
The text also increases from 180 to 360 days the maximum period for these funds to begin their activities after obtaining registration with the CVM (Securities Commission). The period to comply with the minimum investment level increases from 180 days to 24 months (90% of equity in securities of companies created to execute infrastructure projects).
Real estate titles
Funds that invest, for example, in certificates of real estate receivables and in shares issued by an investment fund in credit rights, also related to infrastructure projects, will have more time to reach the minimum of 85% of their assets allocated in these securities.
During 2 years, counting from its creation, the fund may have 67% of the net assets invested in these securities or 67% of the average of this equity in the 180 days prior to the calculation.
The idea is to avoid non-compliance due to changes in assets. To do so, they will have 3 years to comply with the new rule.
Banks and real estate funds
Arnaldo Jardim also welcomed the amendment that excludes the increase he initially proposed for the taxation of banks and financial institutions that invest in certificates of real estate receivables and in shares issued by an investment fund in credit rights related to infrastructure projects.
Before going to the Senate, the text previously approved by the Chamber provided for a gradual increase, over three years, from 15% (what it is today) to 22.5%. With the approved amendment, the 15% rate on Corporate Income Tax remains.
With information from Chamber Agency
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