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- What is the Brazilian 'CPF' and when do I need it?
The Brazilian Federal Revenue is responsible for the emission of the Individual Taxpayer Registration, also known as the ‘CPF’ (Cadastro de Pessoa Física). Whether you are someone who has been to Brazil for business or pleasure, you have probably heard of the CPF, as every shop you go to will ask if you want to include your CPF on your receipt. For this reason, many foreigners wonder if they need to have a CPF when they are in Brazil; this is not always the case. In this article we will go through the situations in which it is necessary for you to have a CPF as a foreigner in Brazil. The importance of discussing this is due to a new law in Brazil, Law No. 14.534 of 2023, that will come into force from 1st January 2024. With this new law, the CPF will become a sole document in Brazil, that is, it will be the main identification document of the Brazilian, and can also be used by foreigners, as a unique number to identify someone in the databases of Brazilian public services. What ID documents are currently used in Brazil? At the moment, the ‘RG’ (Registro Geral/Cédula de Identidade) is the main ID used in Brazil, but for fiscal purposes, the CPF is used more. The Government’s plan with the new law is to simplify documents by using only the CPF - for ID and fiscal purposes. In Brazil it is also common to use the ‘CNH’ (Carteira Nacional de Habilitação), which is a driver’s licence for ID purposes, as it includes the CPF and the RG. When filing for Brazilian documents, is it necessary to have a CPF as a foreigner? The CPF must appear on the following documents: Birth certificate; Wedding certificate; Death certificate; Worker Identification Number (NIT); National Health Card (SUS); Work and Social Security Card (CTPS); Driver's License (CNH). Is is necessary to have a CPF in order to do business or invest in Brazil? Anyone, Brazilian or foreign, not residing in Brazil or residing in Brazil, who owns assets and rights subject to public registration in Brazil, are obliged to register for the CPF, including: Properties; Vehicles; Vessels; Aircraft; Bank current accounts; Financial market applications; Capital market applications. Who should register for a CPF? Brazilians or foreigners who intend to carry out any of the acts listed above, or obtain any of the aforementioned documents, will be required to obtain the CPF and inform it at the time of the act. I live abroad; how can I apply for the CPF? Brazilians residing abroad can apply for a CPF or verify their registration status with the Brazilian Federal Revenue (Receita Federal) in an online process, without having to go to the Brazilian Consulate in the country in which they are based. Watch a video about this topic: In case of difficulties with the CPF application process, Mosaico Tax and Law will be able to help you. Schedule an appointment and find out more. References and useful links: https://www.gov.br/mre/pt-br/assuntos/portal-consular/alertas%20e%20noticias/noticias/change-in-law-do-cpf-afeta-tambem-brasileiros-no-exterior https://www.planalto.gov.br/ccivil_03/_ato2023-2026/2023/lei/l14534.htm https://servicos.receita.fazenda.gov.br/Servicos/cpf/CpfEstrangeiro/default.htm
- Voluntary Returns Service (VRS)
The Voluntary Returns Service’s (VRS) role is to offer support to foreigners in the UK who want to return to their home country. The Home Office recognises that there are people who have no means of doing so, or who need assistance, depending on their personal circumstances. Am I eligible to apply for the VRS? It is important to read the information regarding your eligibility for this VRS before applying. If any of the following apply, you may be eligible if you: ● Are in the UK illegally; ● If you have overstayed your visa or permission to stay; ● Have withdrawn, or want to withdraw, your application to stay in the UK; ● Have made a claim for asylum; ● Are a victim of modern slavery. How can I be sure that I am not eligible? You cannot apply for this service if you: ● Have permission to stay in the UK; ● Have been given a prison sentence; ● Have been convicted of an offense; ● Have been given a deportation order; ● Have Humanitarian protection; ● Have indefinite leave to remain; ● Have Refugee status in the UK; ● Are a Service Provider with a Swiss visa; ● Have a Frontier Worker permit; ● Have an S2 Healthcare Visitor visa; ● Have settled or pre-settled status under the EU settlement scheme. Is it possible to receive financial support through the VRS? You may also be eligible to apply for financial support from £1,500 up to £3,000, which you can use to find somewhere to live, find a job or start a business in your home country. How do I know if I am eligible to receive financial support? You may be eligible to receive this financial support if: ● You are returning to a developing country; ● Your claim for asylum in the UK has been refused; ● You are a victim of modern slavery; ●You are part of a family group that will travel together, including underage family members; ● Are under 18 and traveling alone; ● Are under 21 and a care leaver; ● You have no shelter; ● Need more help with your return. What is the difference between the Voluntary Return and the Assisted Return? An Assisted Return (AR) is a specific type of voluntary return to assist those who require more help to return home. For example, those returning to a developing country, those with complex needs, or those in a vulnerable situation. This includes supporting resettlement in the country of return by providing financial support and guidance from an overseas provider to sustain their return. What do I need to apply for the VRS? The online application is quite simple, you will only need your address in the UK and an email address. Can the VRS buy me a ticket home? If you need the VRS to buy a flight for you then they will make all the arrangements and help you get to your place of departure. However, you must be eligible for this service. I have already bought my ticket; can I still apply to get other types of support? You can still get help if you are funding the return yourself. However, do not apply for the VRS if you have booked a flight to leave the UK in the next 7 days or have already applied for voluntary return and are waiting to hear if your application was successful. How does the VRS work? The process to begin the VRS begins by applying online or via a phone call to 0300 004 0202. I am not confident applying online, can I get help? You can get help completing the online form if you do not feel confident using a computer or mobile device, or if you do not have access to the internet or a device. You can contact the voluntary returns service by calling 0300 004 0202, from Monday to Friday, 9 am to 5 pm (UK time). I have applied online, what happens next? The Home Office will contact you within 3 working days to let you know they have received your application and if you have been successful. Do I need a valid passport to apply for the VRS? Ideally, you should have a valid passport before applying for the VRS. However, it is also possible to apply for the VRS without a travel document if you are not sure how to obtain one. In this case, the VRS can help you get a one-way travel document. I have a medical condition; can I get assistance to travel through the VRS? Yes. You may need to visit a doctor and explain your situation in order to obtain a fit-to-fly certificate or provide confirmation of what medical support you will need during your journey home. The VRS can hire a specialist medical escort to assist you in case of physical limitations which restrict your capacity to travel. The medical contractor can supply hoists to help you onto the plane, and a door-to-door pick-up from your place of residence to the departure port. Can I get support for accommodation? The VRS does not provide accommodation, except for accommodation due to asylum or modern slavery. If this is the case, then you will continue to receive this accommodation until you leave the UK. If you currently receive accommodation through another provider, such as a local authority, the VRS can work with them on a possible short-term extension while arrangements are made for you to leave the UK. Alternatively, the VRS suggests charitable organisations which may be able to help you with short-term accommodation. Will the VRS support me to take my pet back with me to my home country? If you have a support animal, the VRS can work with you to accommodate your pet on your journey. However, you will have to access PetAir UK to provide additional support. In most cases, your animal will need to be documented in order to return with you. To obtain a pet passport, your pet will need a microchip and a vaccination against rabies. How has the VRS helped Brazilians in the UK? The VRS shares case studies about their services. One of these case studies is about a Brazilian family who got help from the VRS to return to Brazil during the Covid-19 pandemic. To read more about the VRS case studies, including this case, visit the GOV.UK website. Can you help me to use this service? Yes. Suppose you would like more information about this service, in addition to the British Government website, you can also contact our specialist, Fernanda Ellis, who is a UK Citizenship Council (CCRU) Legal Adviser to clarify any questions free of charge. Please complete the form on our website and we will be in touch.
- Taxation of Digital Nomads in Brazil
With technological advances and increased mobility of individuals around the globe - digital nomads have emerged. These are professionals who carry out their work online and from anywhere in the world. When moving from their countries of origin and living in other countries, digital nomads go through the process of applying for a specific visa. In Brazil, the granting of this visa is provided for in Resolution CNIG MJSP nº45, of 9th of September, 2021, which was published only in early 2022. Therefore, it is understood that it is something new and still needs to be explored. The Resolution specifically provides for the granting of a temporary visa and residence permit for immigrants, without an employment relationship in Brazil, whose professional activity can be carried out remotely. What is the procedure for obtaining a digital nomad visa in Brazil? Below is the step-by-step process for obtaining a digital nomad visa in Brazil: Step 1: Fill in the Electronic Application (it is not necessary to upload the documentation); Step 2: Print the Application Delivery Receipt (RER) when you finish filling out the Application; Step 3: Request the service via e-consular and wait for analysis by the Consulate team; Step 4: After validation, schedule your appointment via e-consular; ATTENTION: the documents scanned for the pre-conference in the e-consular must be original and must be presented on the day of the appointment; Step 5: On the day and time scheduled, go to the Consulate General with the original documents listed below: Visa Application Receipt (Recibo do Requerimento de Visto - RER) - it is necessary to upload the required documentation for the electronic application; Passport valid for six months or more and a copy of the identification page; Passport photograph less than six months old (from the front, with a light background, without advertising, and without glasses); Birth or marriage certificate;* Negative certificate of criminal record issued by the competent authority of each country of residence of the applicant in the last 12 months;* Proof of residence dated from the last 12 months, such as a certificate of residence, issued by the Parish Council, or invoices, bills, or other documents of the interested party which contain the address; or Concession of Residence Permit (Concessão de Autorização de Residência para Cidadãos da CPLP); Travel insurance and/or health insurance valid in Brazil or Medical Assistance Certificate in Brazil (issued based on the Social Security Agreement between Brazil and Portugal); Statement by the applicant attesting the ability to carry out their professional activities remotely; An employment contract that proves a relationship with a foreign employer; Proof of means of income, from a foreign paying source, in a monthly amount equal to or greater than US$1,500 (one thousand five hundred dollars) or availability of bank funds in the minimum amount of US$18,000 (eighteen thousand dollars). The Consular Authority may request any additional documents. ATTENTION: Public documents (except passports) must be previously legalised by the Brazilian consular representation with jurisdiction over the territory where the document is issued or previously registered by the competent local authorities, depending on whether the country where the document was issued is a signatory to the Hague Apostille Convention. Documents issued in a language other than Portuguese, English, or Spanish must be accompanied by a certified translation. For more information such as consular fees, access to the e-consular, and others, visit the Ministry of Foreign Affairs website or also the Practical Guide to Residence Permit for Digital Nomads in Brazil. After obtaining the digital nomad visa and finally starting to officially reside in Brazil, the question arises as to how the Brazilian State taxes this category. To better understand this, we will start by analysing Normative Instruction No. 208/2002, which brings in its Article No. 2, the concept of ‘resident’ in the Brazilian State: Art. 2. It is considered a resident in Brazil, the natural person: III - who enters Brazil: b) with a temporary visa: 2. on the date one completes 184 days, consecutive or not, of stay in Brazil, within a period of up to twelve months; In comparison with Resolution No. 45/2021, a digital nomad is understood to be an individual who enters Brazil, with a temporary visa, without an employment relationship, and whose professional activity will be carried out remotely. Therefore, this individual will be considered a resident in Brazil when completing 184 consecutive or non-consecutive days in the country, within a period of up to twelve months. Thus, we understand that the digital nomad will be considered a tax resident in Brazil if he complies with this time requirement. Therefore, if you are considered a tax resident in Brazil, will you need to declare and pay taxes, even if you are a digital nomad? The answer is yes. When digital nomads receive their income from abroad, this income will be subject to taxation, through a ‘carnê-leão’ in Brazil, in accordance with the provisions of Article No. 16 of Normative Instruction nº 208/2002: Art. 16. Other income received from sources located abroad by a resident in Brazil, whether or not transferred to the country, is subject to taxation in the form of a mandatory monthly payment (carnê-leão), in the month of receipt, and in the Declaration of Yearly Adjustment. Paragraph 5. The tax related to the ‘carnê-leão’ must be calculated using the monthly progressive table in force in the month in which the income is received and paid until the last business day of the month following the month in which the income is received. ATTENTION! In the same way that Brazil has an interest in taxing the income received by the digital nomad, so too will the country of origin of that individual. This fact makes it necessary to analyse whether both countries have a non-double taxation agreement, or even a compensation agreement since this would avoid double tax payment. Brazil currently has an agreement with 37 countries, including France, Norway, Portugal, and the United Arab Emirates, among others. By default, these agreements address issues regarding the status of citizens in each country and, mainly, deal with the rules of non-double taxation and the prevention of tax evasion. Tax Compensation - Germany - US - UK If you live in one of the following countries, be aware that there is a compensation system in Brazil for taxes paid in Germany, the US, and the UK. Below is specified how this compensation works in relation to each country: Germany: The Agreement to Avoid Double Taxation on Income and Capital Taxes entered into between Brazil and Germany is no longer applicable to income earned or paid, credited or remitted as of the 1st January 2006. However, the Interpretative Declaratory Act No. 16, of the 22nd December 2005 declares that the tax paid in the Federal Republic of Germany on income earned in that country may be offset against the tax due in Brazil, subject to the limits referred to in Articles 15, Paragraph 1, and Article 16, Paragraphs 1, 2 and 6, of the SRF Normative Instruction No. 208, of the 27th September 2002. United States of America: The federal legislation of the United States of America allows the deduction of the tax recognised as paid in Brazil on revenues and income earned and taxed in Brazil, which constitutes reciprocity of treatment. The tax paid in the United States of America can be offset against the tax due in Brazil, subject to the limits referred to in Article 15, Paragraph 1, and Article 16, Paragraphs 1, 2, and 6, of the SRF Normative Instruction No. 208 of 2002. United Kingdom: The United Kingdom’s legislation allows the deduction of income tax paid in Brazil on income earned and taxed in Brazil, which constitutes reciprocity of treatment. The tax paid in the United Kingdom can be offset against the tax in Brazil, subject to the limits referred to in Article 15, Paragraph 1, and Article 16, Paragraphs 1, 2, and 6, of the SRF Normative Instruction No. 208 of 2002.* *The non-double taxation agreement between Brazil and the United Kingdom was approved at the end of 2022 and is currently awaiting approval by the legislature of both countries, to enter into force. ATTENTION! This compensation system only occurs when there is previously an agreement/treaty signed between Brazil and the country of origin or another form of reciprocity treatment. Afterward, if you understand that the declaration and taxation of income of the digital nomad in Brazil are due, ask yourself: How do I issue the DARF (carnê-leão) and subsequently complete the Declaration of Annual Adjustment of Individual Income Tax (DIRPF)? DARF Let's start with the monthly issue of DARF or ‘carnê-leão’. According to the Federal Revenue website, the ‘carnê-leão’ is defined as the income tax that must be paid monthly, on a mandatory basis, by individuals residing in Brazil who receive income from another individual or from abroad. Thus, the digital nomad is obliged to issue and pay monthly the ‘carnê-leão’, as he is a tax resident in Brazil and receives income from abroad. To issue the DARF it is necessary: 1. To access the My Income Tax system (e-CAC Portal); 2. Login with the GOV account; 3. Click on "Access Carnê-Leão" and; 4. Fill in the information necessary to issue the DARF (to fill in this data it is important to have access to your monthly income report). DIRPF Afterward, upon completion of the calendar year, the period for filing the individual's annual income tax return comes up. The Federal Revenue provides two ways to declare, it can be through the online system or through a download of the program corresponding to the year you want to declare. This statement is a means for the Tax Authorities to be aware of your assets and income, although it is necessary to pay the ‘carnê-leão’ monthly, the DIRPF is also mandatory. This is because, after the declaration, the Revenue may understand that it is necessary to charge more taxes or even refund amounts that were paid in excess. What is the deadline to declare income tax in Brazil? As of 2023, the DIRPF delivery period begins on the 15th of March and will end on the 31st May. Finally, if you are a digital nomad residing in Brazil and want to better understand your tax situation, schedule an appointment with one of our specialists. Read our related article on Experts for Expats.
- Overview and Case Studies of the UK Limited Liability Partnership
Overview and Case Studies of the UK Limited Liability Partnership This article’s goal is to outline the advantages of using a Limited Liability Partnership ("LLP") as a UK platform for worldwide business and investment. Although the private limited liability company is the most popular corporate entity form allowed under UK corporate law, the LLPs are widely utilized in overseas tax structures for their several advantages. This type of business entity gives its members limited liability responsibility and therefore incorporates aspects of limited companies while yet maintaining the organizational flexibility and tax position of a partnership. Contents Overview & Operational Matters Fiscal efficiencies Case Study: UK LLP as an Investment Platform Case Study: UK LLP as a Trading Vehicle Final remarks 1. Overview & Operational Matters An LLP is an entity with its own legal capacity. It has the ability to enter into contracts in its own name, own assets in its own right, and is responsible for its own debts and commitments. An LLP and a limited company are extremely comparable and analogous entities in the eyes of the law. It is a distinct legal business entity that offers the advantages of limited liability while giving its members the freedom to set up their internal organization like a conventional partnership. We shall go into more detail about the administrative aspects pertaining to the creation and management of a UK LLP below. (A) Establishment of a UK LLP A LLP is formed by submitting the necessary form to Companies House (which principally contains the name and registered office of the LLP and the name, and personal details of each of the initial members and must be signed by each of the initial members). The process of incorporation is typically quick, Companies House issues a certificate of incorporation, just like they would for a brand-new private limited company, giving the LLP its own registration number. Unlike limited liability companies, LLPs do not have Articles of Association to be filed publicly with the Companies House. Members instead enter into a Partnership Agreement (which sets out the rights and obligations of the members of the LLP). It is worth mentioning that the Partnership Agreement is a purely private document and does not need to be filed with a public registry. There is therefore an additional layer of confidentiality compared to the Articles of Association of companies. LLPs have no restrictions on the activities they can engage in, or the assets they can own, and there are no minimum capital requirements. (B) Membership An LLP is formed by members who are either Designated Members (“DM”) or Ordinary Members (“OM”). An LLP must have at least two DM (individuals or legal entities, dormant legal entities can also act as DM). However, there is no maximum number of either DM or OM by law. A DM, in addition to an OM, has certain responsibilities similar to those of a Company Secretary (i.e. appointment of auditors, signing the FS, submission of FS before Companies House, delivery of notices to the Companies House, etc.). In addition, the Partnership Agreement may grant DMs additional powers similar to those of a Company Director of a limited company. OMs are expected to demonstrate a duty of care (i.e. carry out the LLP's instructions, act in good faith, and not allow conflicts of interest) only with respect to transactions entered into on behalf of the LLP. (C) Partnership Agreement A Partnership Agreement is a non-public document that does not require registration with Companies House and provides a member with all relevant details regarding the relationship between members and how the LLP will be managed. An LLP can offer more flexibility than a limited liability company regarding profit allocation and distribution as the facto Partnership Agreements can provide for different profit sharing and income profit distribution between members. The corporate governance structure is thus flexible and adaptable and further easily modifiable. (D) Continuous obligations UK LLPs have ongoing management, financial and compliance obligations, including, without limitation, (i) registering the LLP and all of the members for Self-Assessment before HMRC (ii) filing annual FS, tax return, and confirmation statements (iii) reporting any changes to Companies House where necessary (iv) making sure the LLP is adhering to all sorts of statutory compliance. 2. Fiscal efficiencies For UK tax purposes, the LLP is treated as transparent which means that broadly speaking if the members of the LLP are a non-resident and if the income of the LLP is a non-UK source, also the LLP and its members will not be subject to UK taxation. Typically, members who are non-UK tax residents are only liable to UK tax on UK-source income, thus a UK LLP with non-UK tax resident members, trading and operating outside the UK is not subject to UK taxation on its members. Still, each non-UK resident member will have to report duties in the UK and may have similar duties in their country of tax residence. 3. Case Study: UK LLP as an Investment Platform A UK LLP is an ideal vehicle to carry investment in a non-UK market when the members are non-UK tax residents. This is because the profits of a LLP are taxed as a partnership, then as long as there is no trading in the UK or source of income in the UK or member resident in the UK, the LLP can be structured to reach operational and also tax efficiencies. The structure chart below shows an example of how a UK LLP can be structured with the purpose of managing investments located in non-UK assets or investment funds, with foreign investors. The purpose of the structure is to invest in a Non-UK Target Investee Company / Fund through vehicle* in a reputable jurisdiction with tax transparency status while maintaining the full management and strategic direction of the venture. In these cases, Investment Managers usually also act as DMs as they maintain full decision-making powers through efficient corporate governance provided within the Partnership Agreement. It is worth noting that OMs are non-UK investors whose funds are managed by the LLP. (* Please note that potential regulations and licenses under the FCA must be reviewed on a case-by-case basis.). Among the advantages we can list the following: Members of the LLP are non-UK residents and the investment returns are non-UK sources, resulting in the LLP and its members not being subject to UK taxation. Investment Managers retain full decision-making powers through the execution of a customized Partnership Agreement fit for the investment purpose. A positive perception of the UK as an investment platform jurisdiction is an effective factor in raising capital worldwide. 4. Case Study: UK LLP as a Trading Business Vehicle A UK LLP is also ideal to carry trading in non-UK markets when the members are non-UK tax residents. Likewise in the previous case study, the profits of a LLP are taxed as a partnership, then as long as there is no trading in the UK or source of income in the UK or member resident in the UK, the LLP can be structured to reach operational and also tax efficiencies. The structure chart below shows how a UK LLP may be designed for the purpose of trading in non-UK markets when the members are non-UK residents. The structure chart below shows how a UK LLP may be designed for the purpose of trading in non-UK markets when the members are non-UK residents. The purpose of the structure is for non-UK resident natural persons to provide services to the Non-UK Market. The LLP enabled members to make use of a reputable jurisdiction to conduct business while maintaining tax transparency. As the services are provided to the Non-UK Market, income has not originated in the UK. Under the individuals’ local jurisdiction, the UK LLP’s profits allocated to the members may not be taxed locally until not repatriated*. Therefore, members may not be subject to UK income tax and defer income tax in their own jurisdictions until they decided to repatriate the profits. (*Tax relief to be checked in each case separately.). Among the advantages we can list the following: The UK LLP is cost-effective and easy to manage, so the day-to-day administration, when properly designed, is not time-consuming. The UK jurisdiction is highly reputable and often the LLP will not have issues contracting with overseas commercial customers and providers. Members of the UK LLP do benefit from a combination of the UK LLP’s tax transparency status and the tax rules of the members' local jurisdictions’. 5. Final Remarks The LLP has the advantage of a vehicle that is comparable to a private limited company in terms of limited liability and legal personality combined with the advantage of partnerships that benefit being able to achieve a high level of efficiency in terms of organization flexibility and also taxation. If flexibility in internal structure is needed, a LLP is excellent because the structure can be changed at any time by adding or removing members. The UK and particularly London is one of the most important financial centers in the world. Therefore, it is a place with prestige and a good image, which allows us to structure vehicles in an efficient way. **Disclaimer of No Legal Advice Intended** The contents of this article are intended to convey general information only and not to provide legal or tax advice or opinions. The contents of this article, and the posting and viewing of the information in this memo, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. No action should be taken in reliance on the information contained in this article. An attorney should be contacted for advice on specific legal issues. Pasquale Barbuzzi International Structuring | Finance & Tax | Advisory
- Top 10 Queries About Divorce in the UK
We have answered the 10 most frequent queries about divorce in the UK in regards to divorce between Brazilian and British couples. This process can be difficult and costly for both parties and become traumatic if children are involved, especially if parties decide to live in different countries. For this reason, we have some answers below: How to divorce in the UK? The divorce process in the UK has now moved online, and all applications are made using the Government portal. At the current time, parties have to pick one of 5 grounds for divorce, either: A 5-year separation; A 2-year desertion period; A 2-year separation period providing both parties agree; That the other party has committed adultery; or That the other party’s behaviour is unreasonable. The new change to the divorce process has been scheduled to come into force on 6th April 2022 when all applications will be made as “no-fault” divorces. There will be no defense to divorce, and the applications can be made by one or both parties. Under the current law, and when the new law takes effect, the divorce process is a 2-stage process. The Court assesses whether there are grounds for divorce and issues a Decree Nisi or Conditional Order, which is the first stage. The second stage is the Decree Absolute or Final Order. Divorce proceedings end the marriage, but do not automatically end the couple’s financial claims against each other, which are dealt with separately. One of the risks with the new online divorce system is that a lot of people are managing their divorces online themselves, but they do not realise that their financial claims are not automatically dealt with. In these circumstances, people can become divorced, but still at risk of their former spouse making a financial claim against them in the future. I married in Brazil, can I get divorced in the UK? The UK Court recognises foreign marriages as long as they were valid in the country where they took place, and on that basis, it is possible to apply for a divorce in the UK. There are some qualifying requirements in terms of domicile and habitual residence, depending on where both parties are living, and if there is any doubt whether the UK Court has jurisdiction, it is worth taking initial legal advice. Will the UK accept my Brazilian marital regime? There is no definitive answer to this, unfortunately. A marital regime of a “foreign” jurisdiction is likely to be approached by the UK Court similarly to a pre-nuptial agreement and treated as one of the many factors for consideration by the Court. It will not be automatically binding when going through a divorce in the UK. In the way that the Court would treat a pre-nuptial agreement, a Judge is likely to consider whether both parties had independent legal advice, whether they were fully aware of each other’s financial position when they entered into the marital regime to be able to make an informed decision, and that they had time in which to make that choice, so they weren’t forced or coerced into it. Above all, a Judge in the UK Court will be checking that the outcome it produces is fair and meets the reasonable needs of the parties and any children involved. How long does a divorce take? Under the current legislation, the typical time for divorce proceedings is between 5-6 months. It is possible to get divorced in around 4 months if all parties act very quickly, but likewise, it can also take a lot longer than 6 months if there are difficulties. Because there is a financial impact of divorce in terms of losing a spouse’s rights to pension funds and insurance policies, most lawyers will recommend that divorce proceedings are not concluded until a financial settlement has been reached (or ordered by the Court). This can sometimes mean a delay of between 6-12 months, or even longer. The new “no-fault” divorce process has 2 built-in time periods which are unlikely to be able to be shortened and add up to 26 weeks in total, i.e. around 6 months. It is therefore anticipated that the length of time to get divorced under the old and new systems is not likely to change dramatically. How is child maintenance determined? The Child Maintenance Service (previously the Child Support Agency) deals with child maintenance calculations and payments in the majority of cases. The calculation is statutory with no discretion. Parties are encouraged to reach an agreement regarding child arrangements payments, but the Child Maintenance Service can carry out calculations, collection of payments, and enforcement if required. There are limited circumstances in which parties can make an application to the Family Court for child maintenance. One of these will be where the absent parent is living abroad, and also where the absent parent’s income is over £3,000.00 gross per week, in which case “top-up” maintenance can be applied for. There are further financial claims that can be made to the Court on behalf of children to meet other needs, such as housing and schooling. How is the house dealt with in a divorce? There is a very wide discretion as to how all assets are dealt with in divorce, and the family home is no exception. The former family home is generally accepted as being a matrimonial asset, but there are some cases where it might be argued that it is not, i.e. where it belonged to one party prior to the marriage, and it has been a particularly short marriage. However, the parties’ needs often outweigh “contributions” arguments. Because the various factors taken into account by the Court are numerous, and the particular circumstances of each case are very different, there are no set rules about how the house will be dealt with. In terms of the options available to the Court, these will be to transfer the house to one party or the other; order it to be sold and direct how the net proceeds are to be divided; or direct that one party be able to occupy the property for a period of time (i.e. to allow children to finish their education), and then the property be sold and proceeds divided. How are assets in Brazil dealt with in a UK divorce? The UK Court cannot make orders binding on a foreign Court. Parties have a duty to disclose their full financial information when dealing with a financial settlement, and this includes all assets held worldwide. They will be expected to produce valuations and evidence of assets held. As the Court cannot reliably order the sale of a foreign property, the preferred option where possible will be to “offset” that asset against assets held in the UK. Issues can arise, however, where foreign assets derive from inheritance or are perhaps considered “family assets” and not truly the property of the divorcing party. What is a Decree Nisi and a Decree Absolute? A Decree Nisi (Conditional Order) is a certificate of entitlement to a divorce. It is a statement from the Court confirming that a Judge has reviewed the divorce paperwork and confirms that the applicant is entitled to a divorce. It is not the final decree, however, and the parties remain married at this stage. Once a Decree Nisi has been granted by the Court, the parties are able to ask the Court to make any financial arrangements they have agreed legally binding on them. The Decree Absolute (Final Order) is the final stage of the process and is the Court Order which ends the marriage. As mentioned above, this does not automatically end the parties’ financial claims against each other. However, the Decree Absolute means that neither party qualifies as the “spouse” of the other in terms of spouse’s pensions or life insurance policies, and also affects inheritance under a Will. Do I need to register my UK divorce in Brazil? It is not necessary to register a foreign divorce in the UK. However, Brazil does require foreign divorces to be registered in the country in order for them to be valid. There are many implications, such as the purchase of property or future inheritance. How much does a UK divorce cost? The Court fee in the UK is currently £593, although subject to increases from time to time. Those on low income can apply for an exemption from the fee, or a part remission by completing a means assessment form for the Court. Any lawyers instructed to manage divorce proceedings will charge for the work involved, usually anywhere between around £500 - £1,000 plus VAT. Because of the online system, unless it is likely to be a very complex divorce or the applicant is anticipating difficulties, most people find it more cost-effective to manage the online divorce process themselves. The area where lawyers can add value and most people benefit from legal advice is in dealing with a financial settlement or disputes regarding the arrangements for children and property. This informative article was written by Fernanda Ellis from Mosaico Tax and Law, and Madeleine Young, a specialist in Family Law from Hewetts Solicitors.
- Offshore Compliance
Do you have overseas income or assets? HMRC has increased resources to tackle offshore non-compliance. This article will mention some of the recent developments and methods on which taxpayers can disclose foreign income which may not have been properly communicated previously. It will also comment on the issues which can arise once the HMRC receives information from overseas. Common Reporting Standard The CRS is an information standard for the automatic exchange of tax and financial information on a global level. It was developed by the OECD to combat tax evasion and was, in great part, based on the USA FATCA. Around 100 countries have signed and are committed to supplying data to HMRC. Early adopters started to report from June 2017: Anguilla, Argentina, Barbados, Belgium, Bermuda, British Virgin Islands, Bulgaria, Cayman Islands, Colombia, Croatia, Curaçao, Cyprus, Czech Republic, Denmark, Estonia, Faroe Islands, Finland, France, Germany, Gibraltar, Greece, Greenland, Guernsey, Hungary, Iceland, India, Ireland, Isle of Man, Italy, Jersey, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Montserrat, Netherlands, Niue, Norway, Poland, Portugal, Romania, San Marino, Seychelles, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Trinidad and Tobago, Turks and Caicos Islands, United Kingdom. And Late Adopters are starting to report in 2018: Albania, Andorra, Antigua and Barbuda, Aruba, Australia, Austria, The Bahamas, Bahrain, Belize, Brazil, Brunei Darussalam, Canada, Chile, China, Cook Islands, Costa Rica, Dominica, Ghana, Grenada, Hong Kong (China), Indonesia, Israel, Japan, Kuwait, Lebanon, Marshall Islands, Macao (China), Malaysia, Mauritius, Monaco, Nauru, New Zealand, Pakistan, Panama, Qatar, Russia, Saint Kitts and Nevis, Samoa, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Sint Maarten, Switzerland, Turkey, United Arab Emirates, Uruguay, Vanuatu. Whilst this data will allow HMRC to address non-compliance, it is also anticipated that it may be problematic for people who are compliant with their obligations. For instance: A person who shows little foreign income on his tax return. Once HMRC receives information on the existing capital balance, they may assume that the capital was also the result of foreign gains and may request additional information in order to establish the origin of the balance. HMRC may request documentation that is outside their powers or not related to the discovery. Hence it is important that compliant taxpayers should also seek professional advice and engage with the HMRC. HMRC is likely to request that taxpayers sign a Certificate confirming that they are fully compliant with their UK tax obligations. This certificate may not be well worded, may not include reference to a particular tax period, and once signed, if there was a false statement, it can lead to prosecution. It is important for taxpayers to realise that this Certificate is optional and they are not obliged to sign it. Requirement to Correct tax due on offshore assets This requirement was introduced in April 2017 and will affect years past years. Corrections must be made by September 2018, prior to HMRC receiving CRS data. If corrections are not made within the deadline, it can give rise to new offenses in relation to a “failure to correct”. There will be large new penalties, starting at 200% of the tax due, and could be mitigated down to 100%. This is particularly relevant for inheritance taxes for instance, due to the tax being calculated on the value of the asset/estate. HMRC will not accept human error or carelessness as excuses and will have powers to make the information public, effectively “naming and shaming” individuals whose tax bill is above £25k. It will also add 4 years to the normal assessment period times and is proposing a 12-year time limit for offshore matters. More information on: https://www.gov.uk/guidance/requirement-to-correct-tax-due-on-offshore-assets Worldwide Disclosure Facility – WDF One of the ways to disclose offshore liabilities is using the WDF. It is best to be used for common cases and it is not compulsory that a disclosure shall be done via this route. For more information visit: https://www.gov.uk/guidance/worldwide-disclosure-facility-make-a-disclosure Once registered online, the applicant will have 90 days to make the full disclosure and, for more complex cases, the deadline can be expanded for further 90 days. It is used when there is an element of offshore liabilities, but once the facility is being used, both offshore and onshore liabilities shall be declared in full. Although the WDF does not protect against prosecution, it is very unlikely that prosecution may take place. If there are concerns, the Contractual Disclosure Facility can be used: https://www.gov.uk/guidance/admitting-tax-fraud-the-contractual-disclosure-facility-cdf Please get in touch if you have questions regarding the information above.