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São Paulo State Dock Company included in Privatisation Program

After first commanding an ordinary meeting of the Investment Partnership Program (PPI) on Wednesday, August 21, the Minister Onyx Lorenzoni, announced that the São Paulo State Dock Company (Codesp) was included in the National Privatisation Program (PND). The Minister of Infrastructure, Tarcísio Gomes de Freitas, celebrated the “destatisation of the largest port in the Southern Hemisphere”.

The minister emphasised that a Brazilian delegation led by the national secretary of ports, Diogo Piloni, is visiting Australia to understand details about conducting the destatisation studies of the ports of Melbourne, Brisbane, Darwin and Sydney, produced by PricewaterhouseCoopers, one of the largest companies of audit and consulting firm. The leader of the infrastructure portfolio also recalled that Brazil “today has the largest asset transfer program for the private sector in the whole planet”. The aim, according to him, is to reach the best format for the country. “It could be a public offering of shares, concession of services with public port authority or even privatisation.” PPI Special Secretary Martha Seillier said it is not yet possible to estimate the amount of investments related to concessions and privatisation at the Port of Santos. “But the values will certainly be very large,” concluded.

The São Sebastião (CDSS), Espírito Santo (Codesa) dock companies and Suape Industrial and Port Complex in Pernambuco have already been included in the PND at previous meetings. Other important state-owned companies such as Correios and Eletrobras were also qualified for a future transfer to private enterprise. “We are redefining the role of the state, after all we do not want an ‘entrepreneurial state’,” said Salim Mattar, special secretary for privatisation, development and markets at the Ministry of Economy. Modeling the sales format of each company will go through long study processes, which will hardly be less than 18 months.

In just over three years of operation, PPI qualified 248 projects, 151 of them already auctioned. The expectation of the Federal Government is to stimulate R$ 262.5 billion in investments in the coming years, in addition to raising grants of approximately R$ 52 billion.

CARF discusses binding precedent against ship agents

In an directive published this Tuesday (6), the Administrative Council of Tax Appeals (CARF) proposes fifty binding precedentt, among which is the Summary 49, by which “the cargo agent and the maritime agent, as representatives in the Brazil for the international carrier shall be liable for infringements committed in the carriage of goods ”. The draft may be approved at an extraordinary session at CARF’s headquarters on September 3.

This is another chapter in the long battle fought between the Tax Authority and ship agents- who suffer from the fact that the Federal Revenue imposes on them fines that should be aimed at the carrier/shipowners.

The summary statement proposed by CARF intends to give final contours to the imbroglio, but in a completely unfavorable outcome to ship agents – an essential figure for international maritime transport.

As agents of foreign shipowners who carry out international transport, ship agents perform the all-important task of dealing directly with the complex intricacies of the Brazilian bureaucracy.

In this regard, considering PROMARE’s mission to promote foreign trade, shipping mentality and Legal Certainty in and outside the courts, we express our utter disagreement about the CARF’s directive and proposed biding precedent.

Thus, in order to discuss and argue against the proposed biding precedent our office will attend the session at which CARF will deliberate on the approval.

Coastal Navigation incentive Program

A Coastal Navigation incentive program that the Ministry of Infrastructure intends to launch in August expects to expand the transport of goods along the Brazilian coast.

An interim measure is expected to bring about major changes in the industry’s regulatory framework, which has had an average annual growth of 12.8% over the past decade. Despite the Chinese economic pace, the government estimates that there is still plenty of room for expansion. The goals of the new program include doubling the volume of containers transported per year from the current 1.35 million to 2.7 million TEUs (20 foot equivalent unit) in 2022, and to increase by 40% the capacity of the maritime fleet dedicated to costal navigaiton in the next three years.

The plan, which has been called “BR do Mar” by the ministry’s technicians, foresees simultaneous and multi-front initiatives to stimulate the sector: more flexibility in the incorporation/import of new vessel by Brazilian shipping companies, easier use of port terminals aimed at handling cargo, a change in the guarantee system for access to the Merchant Marine Fund (FMM) and an attempt to end distortions in the charging of ICMS (state tax) on bunker.

“We are able to triple the growth rates of domestic shipping,” said Diogo Piloni, the national secretary of Ports and Waterways.

One of the Program’s greatest advances is the encouragement of the establishment of “special operations” – new routes that companies can offer on a trial basis linking one port to another.

To test a domestic route, one wil be temporarily free from the requirement to have own fleet (at least one ship imported or built in Brazil) to obtain registration as a Brazilian shipping company (EBN).

For a maximum period of four years, EBN may charter vessels without this obligation. The idea is to allow a test that paves the way for the establishment of longer lasting routes. Today one of the biggest obstacles to the development of coastal navigation is the lack of regularity of operations. “We are reversing the logic,” explains the director of the Department of Navigation and Waterways of the Ministry of Infrastructure, Dino Antunes Batista. “Today companies need to invest to enter the market. With our new Program they can enter the market and then decide how much to invest.

“When infrastructure is not available at the source or destination port, with a terminal capable of handling cargo carried on these experimental lines, companies can explore terminals through a simplified procedure – also for up to four years. This process promises to be less bureaucratic than a port terminal lease.

Shipping companies will gain an incentive to expand supply – not just special operations – with foreign vessels. They will earn exemption from federal taxes, such as Import Tax and PIS / Cofins, by incorporating ships manufactured abroad. These taxes increase equipment costs by 40% to 50%, according to government estimates, and will turn into credits.

The credits must necessarily be used in the Brazilian shipbuilding industry. It can be in the repair or maintenance of imported vessels, not just in the construction of ships. But gains from the exemption will need to be “returned” to national shipyards.

Another obstacle that the government intends to unlock with the MP is the guarantees for access to the billionaire Merchant Marine Fund (FMM). With different rates of financing for shipbuilding, the fund has been underused. The risk of loans rests with the credit transfer institutions – BNDES, Banco do Brasil, Caixa, Banco do Nordeste and Banco da Amazônia.

In the new program, the government will put into practice the “unenforceability of the linked account”. This means that a tax on the amount of freight that is collected by the shipping company and goes to itself, in a specific account for any FMM financing, can no longer be frozen or enforced against. As a result, banks will be collateralized and more comfortable with landing credit.

An additional goal of the Program is to match the price of fuel used in international (now ICMS-free) and domestic (15% to 18% tax) freight rates. The Union cannot legislate on state taxes, but has found a legal solution to allow the government of each state to clear the tax collection. Without this, any exemption would have to be endorsed by ever state on the National Council of Finance Policy (Confaz).

Compliance | Anti-corruption

In face of the current challenges of advocacy and the world scenario as a whole, and in line with our Values and Beliefs, we started implementing the Promare | Rabb Carvalho Advogados Compliance Program.

Our Compliance Program is focused on creating a set of internal integrity mechanisms and procedures in the fight against corruption, encouraging, through preventive and ostensive measures, the adoption of conduct in accordance with the ethical laws applicable to advocacy as well as to the field of performance of our customers.

Thus, our Program is one of the six main pillars:

  • Identifying and encouraging compliance with laws and regulations, including anti-corruption legislation and policies;
  • The creation of an internal control mechanism for the implementation, execution and monitoring of the program;
  • Encouraging its direct and third-party employees to comply with the Promare Code of Ethics and Conduct and anti-corruption laws and regulations;
  • Preventive action to prevent fraud and illicit;
  • The establishment of disciplinary measures and remediation of possible damages in case of violation to the standards related to Compliance Promare | Rabb Carvalho Advogados
  • The adoption of transparency regarding donation to candidates and political parties.

Our team, aware that the corporate conduct is materialized through the actions of each of its employees, identified three main norms that regulate its activity: the Law Statute, the Penal Code and the Anti-Corruption Law.

Compliance with the rules, besides avoiding the application of penalties, brings other fundamental benefits. The main thing is maintaining a working working environment. Another benefit is the good reputation in the market and the good acceptance of the public opinion, since the Brazilian society does not tolerate more companies with the name related to corruptive practices, valuing even more those that maintains its reputation unblemished.

The RC | LAW Compliance Department is an independent communication channel for members of the office as well as anyone who is aware of the practice of unethical acts by any member of staff. The compliance department´s governed by an anti-recrimination policy, according to which no one will be harmed by making a complaint in good faith.

The communication channel receives reports with the indicated authorship or even anonymous ones, always guaranteeing the confidentiality with respect to the data of the one that uses the Compliance department. The channel is available to all, and can be accessed through the email: [email protected].