Cross Border: how does legislation work to sell abroad?

Junho's E-Commerce Magazine Brasil layer theme, or cross border is among the main non-e-commerce themes this year. Second data given by Research and Marketers about B2C and e-commerce after the size of 2017. More than just the legal and legislative details to operate abroad? To answer this and other questões, we spoke with a digital e-mail specialist, Márcio Cots. Trust:

ECB: Two more topics discussed during the crisis and the slowdown of the varejo market (and also e-commerce) at the present time and the possibility of selling abroad. No case of cross border, what types of legislation regulate activity (letter, return policies, etc)?

Márcio Cots: Although electronic commerce is relatively new, and international electronic commerce is still more, thematic does not include some of the most traditional forms of commerce, whichever is the exportation of products. A preliminary analysis of the sale for or abroad should start from the verification of two international accords, two double taxation accords or Brazil signatário, accords such as Mercosul, etc., should be a joint analysis.

Not less important is the verification of national customs legislation, and also other regulations that foresee the incidence of taxes on the operation. For example, an international agreement may provide for an aliquot lower than or the minimum amount applied nationally, but eventually the Government may or may wish to promote exports. It will also be able to avoid a double incidence of impost. In general, on a sales operation originated in Brazil and destined abroad, at a rate of ICMS and ISS and zero, and also not including PIS / COFINS and IPI.

It is also recommended to analyze three elements: what is to be exported, what mode of transport and or custody of the product. Depending on the responses, there will be more or less bureaucracy and custody for the operation. A positive point is that the Brazilian Government customizes to encourage the export of products, many with zero aliquots, as well as establishing less rigorous rules for or sending two products, or that it facilitates the life of the seller.

Ao sair do Brasil or product enters another State with rules that can or cannot coincide with Brazilian ones (period of reimbursement, return, guarantee, insurance, etc.), no matter what reason it is recommended, that the seller does not start its operations once Before studying the markets minimally, you will allocate your products. Isso fará how it is not surprendered in the future.

Regarding this matter, we also consulted our European partner, José Baños (partner-founder of Letslaw - specialized writing desk in digital business) to answer this question with a view to your market. In order to be a Brazilian e-commerce, with a local operation in Spain, you want to sell your products in the Spanish market, the terms and conditions of your site must be adapted to the Spanish legislation, in accordance with Royal Legislative Decree 1/2007, of November 16, which approved the consolidated text of the Law for the Defense of Consumers and Usurários ”.

In the second Baths, or Brazilian electronic commerce, two consumers must be respected and must respect, in addition, or must provide consumers with the following information:

a) the characteristics of the merchandise;

b) the identity of the entrepreneur (including details relating to the registered name of the entrepreneur, complete name exchange and telephone number);

c) Total price, including all taxes, charges and guarantees;

d) upon the existence of a declaration that the goods are in conformity with the contract, upon the existence of the terms of quaisquer after-sales services and commercial guarantees;

e) Inform the existence of direct regret that the consumer has (14 calendar days).

We also consulted our partner in the United States, Julia Cheng (Partner of CyberLawStudio PLLC - specialized office in digital businesses), who informed us that “it is important for us to abide by the contracts that are available online, within them: terms of delivery, terms of services, delivery policies, reimbursement and payment, pois é da culture of the American, accompany and read carefully all the contracts exposed no site ”. It must be noted that the US does not contaminate with a consumer defense legislation (such as the CDC, which exists in Brazil), fazendo as that the terms of use pass to a greater relevance.

ECB: No reverse direction - varejistas de fora, like Alibaba, who sell not in Brazil - or what does the Brazilian legislation foresee?

Márcio Cots: We think of ourselves as an example of the situation of a Chinese supplier who wants to sell products in Brazil, we will see that the Brazilian consumer will have a heavy tax burden on his purchase:

Importo de Importação - II - calculated as base or customs value, having varying aliquots per product;

Tax on Industrialized Products - IPI - also allows varying aliquots per product according to the TIPI table;

ICMS - Importation, each State not qualifying the merchandise for disembarkation will determine the incident rate, in São Paulo, for example, based on the calculation of this tax and the constant value of the import document, added to the value of II, IPI, IOF, bem as of quaisquer other imposts, taxes, contributions and customs clearance;

PIS-Importação (1.65%), COFINS-Importação (7.6%, regra geral), IOF (0.38%), in addition to customs taxes.

It is important to consider that for the measurement of aliquots, various points will be validated, including the essentiality of the product, the product has a national similarity, the existence of international agreements, etc. In addition, the Brazilian legislation seeks to pay heavily to importation of products, and on the contrary, it stimulates exports.

From the point of view of consumer legislation, there is no distinction between a seller located in Brazil or abroad. All are technically called "suppliers" by the Brazilian legislation (art. 3 of the CDC), having exactly the same obligations. Or that it happens that many foreign providers, although they do not have representation in the national territory, frequently are not judicially affected before the difficulty of maintaining a non-foreign judicial process (it is not the country of origin, it is requested by letter rogatory).

Finally, it should be noted that some foreign suppliers are promoting the use of Brazilian marketplaces for the intermediation of their sales. In this case or marketplace, you may be held liable for the national consumer, especially if you are a current supplier or supplier of the product.

ECB: Does each country have a kind of law? Is there any pattern of legislation of countries (or behavior more or less similar to alfândegas) or are they very different from each other?

Márcio Cots: From the point of view of consumer protection there are great similarities between the legislation of two countries with the same legal tradition, such as, for example, Anglo-Saxon. On the other hand, the United Nations Organization - UN has models of laws that can serve as a parameter or raw material for national laws, or that certainly produced some standardization in the legislation of various countries.

We will turn to the tax or fiscal aspect, a more complex physical question, because each Government has quite different political and economic interests. For example: in Spain, José Baños affirms that “when a Spanish consumer buys a product from a foreign company online, this company must comply with the legal provisions established in the community customs code (Regulation No. 952/2013 of the European Parliament and do Conselho, of October 9, 2013) ”.

Isso means that the knowledge of the Spanish legislation is essential for me to want to sell that country. Still, in order to try to harmonize the rules between the States, it is important or important role to play two international agreements and economic blocs, which seek to de-bureaucratize and make viable international trade between countries with different tax legal arrangements.

ECB: Is there a country where cross-border sales are more encouraged or where bureaucracy is less?

Márcio: Em regra, all countries encourage the sale of two serious products abroad. On the other hand, the incident taxation on the entry of imported product will depend on the economic analysis that the recipient requires. As mentioned above, the entry of imported products will be analyzed for its essentiality, a similar product has been made within the Country, among other measures of economic policies that are peculiar to each Country.

ECB: As an e-commerce practitioner who wants to sell via cross-border, should you prepare (not legal aspect)?

Márcio: Studying the markets where the products will be offered is essential. It is necessary to know how alfandega works and how it is linked to the consumer. For both, it is suggested to partner as advogados locais, so that it is possible to study or more precise.

The operation involves a certain passive risk of discussion, also useful, houver dúvidas, make consultations with government bodies and strengthen the business model with legal opinions.

ECB: What types of taxes or rates or fees do you need in order to verify the viability of selling internationally?

Márcio: The e-commerce practitioner will have to define the countries that will be served for the analysis of two planned taxes, not the Country of destination. To determine the import costs internally, the Federal Revenue makes a simulator available, not which will be inserted or NCM of the product, or customs value, in the country of destination. Through this simulation, it will be estimated or value that the employer will pay to import (including taxes and administrative taxes).

O Cross Border face part of the program of the E-Commerce Forum Brazil 2016. Confira:

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