Special consumptions tax (ICE) – Tariffs applicable in 2021

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The General Director of the Internal Revenue Service issued three regulations on December 23, 2020, which were published in the Second Supplement of the Official Registry 359 on December 29, 2020, which are:

1. Regulation NAC-DGERCGC19-00000078 establishes the Special Consumption Tax (ICE) specific tariffs applicable in 2021:

Compared to the tariffs applicable in 2020, the tariffs for cigarettes and soft drinks remain the same, the tariff for plastic bags increases -established by law- and the remaining tariffs are slightly reduced compared to 2020.
2. Regulation NAC-DGERCGC19-00000079 adjusted the manufacturer’s and ex-customs’ sales price value by US$4.29 per liter for applying the Ad Valorem tariff on alcoholic drinks, including beer, applicable for fiscal year 2021.
In 2020 the value was US$4.33 per liter.
3. Regulation NAC-DGERCGC19-00000080 established the percentages of increase to be applied over the ex-customs price or the total production costs to determine the referential prices of perfumes and toilet waters marketed through direct sale (the manufacturer or importer sells to final consumers directly and not through commercial establishments), for fiscal year 2021, according to the percentages detailed in the following table:

The values detailed in the table are the same as those established for the year 2020.
For calculating the tax, the total production costs of the nationally manufactured goods must include raw materials, direct labor, and indirect manufacturing expenses.
Any royalty payments calculated on the basis of volume, value or amount of sales will be considered part of the total production costs for calculating the tax. However, if the royalties do not exceed 5% of the sales, they should not be considered as part of the taxable base.

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Deadlines for tax matters

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In accordance with the ruling issued by the Constitutional Court declaring the unconstitutionality of the executive decree that established the state of emergency throughout the national territory, the Tax and Customs Authorities have lifted the suspension of terms and conditions, as established below:
1. The Internal Revenue Service, through Regulation NAC-DGERCGC21-00000001 issued on January 3, 2021, repealed the Regulation NAC-DGERCGC20-00000081 issued on December 23, 2020, by which the terms and deadlines of all administrative processes and the statute of limitations for collecting debts were suspended until January 17, 2021.
2. The National Customs Service of Ecuador, through Regulation SENAE-SENAE-2021-0001-RE, issued on January 3, 2021, canceled the suspension of terms and deadlines of all tax administrative processes and the statute of limitations for collecting debts until January 20, 2021, ordered by Regulation SENAE-SENAE-2020-0062-RE, issued on December 22, 2020.
3. Although when this bulletin was prepared, these regulations have not been published in the Official Gazette, the authorities of the Tax and Customs Authorities have established that the terms counted in calendar days will run as of January 3 and the terms counted in working days will run as of January 4, 2021.

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Tariffs applicable in 2021 for calculating income tax

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Regulation NAC-DGERCGC19-00000077 issued on December 23, 2020, by the General Director of the Internal Revenue Service establishes the tariffs applicable in the fiscal year 2021 for calculating income tax.

1. Tariffs for calculating and paying income tax applicable to income received by Individuals and Undivided Inheritances in the fiscal year 2021:

2. Tariffs for calculating and paying income tax applicable to patrimonial increase derived from inheritances, legacies, donations, discoveries and any type of act or contract by which the ownership is acquired free of charge of goods and rights in the fiscal year 2021:

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Suspension of deadlines in tax matters

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In accordance with the state of emergency declared by the President, the Tax and Customs Authorities have suspended the following deadlines and terms:

1. Regulation NAC-DGERCGC20-00000074 issued by the Internal Revenue Service established that the terms and deadlines in all administrative processes and the statute of limitations for collecting debts are suspended from December 24, 2020 up to and including January 1, 2021. Later the term of suspension was extended up to and including January 17, 2021, by regulation NAC-DGERCGC20-00000081.

2. Regulation SENAE-SENAE-2020-0062-RE issued by the Customs Authority established that terms and deadlines in all administrative processes and the statute of limitations for collecting debts are suspended from December 22, 2020 up to and including January 20, 2021.

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Law for the rationalization, reuse and reduction of single use plastics in commerce

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The Law for the Rationalization, Reuse, and Reduction of Single-Use Plastics in Commerce (the “Single-Use Plastics Law”) was published on December 21, 2020. The main topics of the Law are the following:
1. Objective
The purpose of the Single-Use Plastics Law is to regulate the generation of plastic waste, the progressive reduction of single-use plastics through responsible consumption, reuse, recycling, and possible replacement by packaging made from recycled or biodegradable material.
2. Guiding Principles
The environmental principles for the interpretation of the Law are the following:
2.1 Comprehensive responsibility
2.2 Environmental Best Practices
2.3 Sustainable Development
2.4 Polluter pays
2.5 Prevention
2.6 In dubio pro natura
3. Progressive reduction of single-use plastic

The Single-Use Plastics Act provides for the progressive reduction of single-use plastics from the time it comes into effect:
Within 12 months, it is forbidden to:
1) Merchandise and use of single-use plastic bags and containers for food and beverage in national parks, protected areas, beaches
2) Use of single-use plastic bags or wrappers for the delivery of printed advertising, newspapers and magazines
3) Manufacture and import for internal consumption, distribution, delivery, and use of single-use plastic sorbets.
Within 24 months, it is forbidden to:
1) Manufacture and import for internal consumption, distribution, and use of plastic bags that do not contain the minimum percentage of post-consumer recycled material
2) Manufacture and import for internal consumption of bags and single-use articles that include additives that catalyze such materials’ fragmentation into microplastics.
(3) Manufacture and import for domestic consumption, distribution, and use of containers or packaging made of polystyrene, which does not contain the minimum percentage of post-consumer recycled material
Within 36 months, it is forbidden to:
1) Manufacture and import for internal consumption, distribution and use any modality of bags, plastic wrappers of a single whose manufacture does not contain the percentage of recycled raw material
2) Manufacture and import for domestic consumption, distribution and use of plastic plates, cups, and other single-use food and beverage utensils and tableware that are not recyclable or reusable and whose manufacture does not contain the percentage of recycled raw material.
4. Exception for the use of single-use plastics

Plastic bags and packaging that constitute the primary packaging of food in bulk or of animal origin are excluded from the above prohibitions. Also excluded from the standard are single-use bags and packaging related to cleaning, hygiene, health, or medical.
5) Minimum component
All bags, containers, and plastic products that are not mentioned in the prohibitions must comply with minimum characteristics determined by the Ministry of Environment in conjunction with the Ministry of Production and Foreign Trade. These characteristics will contemplate the minimum percentages of post-consumer recycled material. The percentages previously described will be reached progressively and within the deadlines outlined in this Law.
6. Registration
The Ministry of Environment shall create a national public registry of importers and producers of plastic, single-use plastic products. The Registry shall provide statistical information regarding the import, manufacture, distribution and consumption of these products.
7. Labelling
All plastic articles for consumption will have a label printed on their packaging recommending how to reuse and recycle them following the National Technical Standard
8) National Plastic Waste Reduction Plan
The Ministry of the Environment has 90 days to prepare the National Plan for the Reduction of Plastic Waste. This plan will establish the objectives, goals, strategies, and incentives to reduce plastic waste.
9. Infractions and sanctions
Some of the main infractions and sanctions are the following:
It is considered a severe infraction:
a) Recidivism by producers, importers, and marketers in the non-compliance with the prohibitions for reducing single-use plastic products.
It is considered a serious infraction:
b) Non-compliance by producers, importers, and marketers in the reduction of single-use plastic products.
c) The use of single-use plastics in prohibited areas.
The sanction will depend on the offender’s economic capacity according to the Organic Code of the Environment.
It will be a pleasure for Corral Rosales to assist you in adapting and fulfilling the present Law.

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Annual declaration of hazardous waste

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Within the first ten (10) days of the next year, generators of hazardous waste must submit the annual declaration of hazardous waste to prevent and reduce the generation of such waste.
1. About the Hazardous Waste Generator
Article 237 of the Organic Code of the Environment establishes that any hazardous waste generator must obtain an administrative authorization.
The waste generator will be responsible for the environmental management of the waste from its generation to its elimination and final disposal.
The generator will be jointly responsible in case of incidents that produce pollution and environmental damage.
2. About the Annual Hazardous Waste Declaration
Part of the generator of hazardous waste’s obligations is the presentation of the Annual Declaration to prevent, reduce, or minimize the generation of hazardous waste.
The Annual Declaration must be filed within the first ten days of January.
The declaration submitted will be subject to verification by the authority, which may request additional information in this matter.
3. Non-compliance
Non-compliance with the Annual Declaration may result in the cancellation of the registration as a generator of hazardous waste.
Additionally, it may be considered a minor Non-Conformity according to article 500 j) “failure to comply with the obligations established in the administrative authorizations.”
CorralRosales will be happy to assist you in the presentation of the Annual Declaration of Hazardous Waste as well as any questions you may have regarding waste management.

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Amendments to the law of companies

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On December 10, 2020, the Law of Modernization to the Law of Companies was published in the third supplement of Official Gazette 347, of which the most relevant aspects are the following:

a) Permitted activities outside the corporate purpose: Companies are allowed to occasionally or in an isolated manner enter into acts or contracts for investment, research or experimentation purposes, or as reasonable contributions of a civic or social nature.

b) Elimination of the opposition process: The process of opposition by third parties to the reduction of capital, change of name, early dissolution and change of domicile is hereby eliminated.

c) Single shareholder: The stock company and the limited liability company may subsist with a single shareholder. For its incorporation, at least two contracting parties must participate. Consequently, the cause for dissolution is hereby eliminated if a second shareholder is not incorporated within six months.

d) Corporate acts that do not require approval:  The voluntary and anticipated dissolution does not require previous authorization of the Superintendence of Companies, Securities and Insurance. Therefore, the direct inscription of the corporate act in the Mercantile Registry is allowed for the beginning of the liquidation, which will be supervised by the control entity.

Neither does the change of name, change of domicile and modification of the corporate term require prior authorization.

e) Indefinite term: Stock and limited liability companies can be set up for an indefinite term.

f) President of the board of directors and legal representative: In the companies in which the bylaws provide for the existence of a board of directors, the legal representative of the company may not be the president or representative of that body.

g) Share premium: When non-shareholders participate in a capital increase, it may be decided the new shares to be issued with a value greater than the nominal value (share premium) to be paid by the new shareholders. The issue premium will be part of the voluntary reserves and will be freely agreed upon by the investor and the company.

h) Voluntary control: Stock companies may or may not have commissaries as a control body.

i) Loss absorbency: When a company registers operational losses and has reserves, these will be automatically called to be wiped out.

j) Cause of dissolution for losses: A company will incur in a cause of dissolution for losses when these represent 60% or more of the assets and this situation is maintained for more than 5 continuous years.

k) Transfer of the registered office abroad: The transfer of the registered office of an Ecuadorian company abroad is allowed if the receiving country allows the maintenance of the legal status of the company.

l) Global assignment of assets and liabilities to liquidate a company: A company may transfer in block all its assets to third parties, shareholders or other parties in exchange for a consideration. The global transfer of assets and liabilities must be approved unanimously by the general meeting of shareholders, granted by public deed and will not require the approval of the Superintendence of Companies, Securities and Insurance.  The global assignment of assets and liabilities will have the effects of the transfer of companies as economic units as provided in the Code of Commerce.  The assigning company will cancel its registration in the Commercial Registry without any additional procedure once the total value received from the global assignment of assets and liabilities has been distributed among its shareholders.  The joint and several obligations that under the Commercial Code are attributable to the person transferring the company will be assumed by the shareholders of the extinct company in proportion to their participation in the share capital.

m) Association or Joint Purse Agreements: The regulations regarding this figure, with some modifications, are excluded from the Law of Companies and are incorporated as reforms to the Code of Commerce.

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Judicial recess

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The Reformatory Organic Law of the Organic Code of the Judicial Function, published in the Supplement to Official Gazette No. 345 of December 8, 2020, regulated the recess and vacation periods of the Judicial Function.

By virtue of this reform, the judiciary servants of Ecuador will enjoy their annual vacations in two fifteen-day periods each:

  1. The first, in the Sierra and Amazon regions from August 1 to 15 and in the Coastal and Island regions from March 17 to 31.
  2. The second, in the entire country, from December 23 to January 6 of the following year.
During these periods, the Judiciary goes into recess, and, therefore, the deadlines and terms within any legal proceedings in progress are suspended.

Please note that general and specialized criminal courts, tribunals and chambers, as well as courts for family, women, children and adolescents will not be subject to these recesses.

During the time of the vacancy, actions for jurisdictional guarantees may be filed, and after a draw these will be heard by those judges who continue working during this time.

Exceptionally, in cases of fortuitous event or force majeure, the Judiciary Council may change the dates of these recesses.

In order to guarantee permanent services to the citizens, the Judiciary Council will coordinate the annual vacations system with the rest of the auxiliary and autonomous bodies of the Judiciary.

The Plenary of the Judiciary Council determined, by Resolution 141- 2020 issued on December 14, 2020,  that the annual vacations for judiciary servants nation-wide and the Judicial Function recess for 2020 will be applied in accordance with the above-mentioned reform. Consequently, there will be a judicial recess from December 23, 2020 to January 6, 2021. Therefore, any the hearings and proceedings that were scheduled within these dates will be rescheduled.

The Director of the Judiciary Council shall issue the resolution corresponding to the vacation system for the administrative servants of the Judiciary, in coordination with its other autonomous and auxiliary bodies.

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Regulations for public-private partnerships

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By Executive Decree 1190 issued on November 17, 2020, the President of the Republic published the Regulations for Public-Private Associations (“Regulations“).
General aspects
Delegated management contract: agreement by which the rights and obligations of the delegating entity and a private company are determinate in relation to the execution of a public project whose management is delegated. The Public-Private Partnership (“PPP“) is a form of indirect management of public activities whereby, through a long-term delegated management contract, a private manager is entrusted with the development or management of infrastructure or public services.  The private manager assumes the risk and responsibility during the term of the contract, its consideration is linked to the performance of the project.
Institutional organization
Inter-institutional Committee of Public-Private Partnerships (“Committee“). It is responsible for issuing policies, technical regulation and direction in the delegated management of public projects and will be presided over the head of the Ministry of Economy and Finance. The Committee, among other competencies, shall: define the sectors in which the creation of a PPP will be promoted through the approval of the PPP Project Program; determine the policies and guidelines for the application of the benefits provided in the PPP Law; regulate technical aspects of a project through the issuance of technical guides; keep public information regarding PPP projects; award all or part of the tax benefits provided in the PPP Law; promote the participation of the financial sector, national and international, in the financial structuring of the projects.

Other competences of the Committee: to approve projects proposed by a delegating entity; to establish the projects that can be delegated to a private manager for the use of the existing infrastructure; to establish institutional coordination mechanisms.

Regime of delegated management contracts and PPP projects

Regarding public projects, it defines services of general interest as public services related to strategic sectors and the provision of goods under the jurisdiction of a public administration. A public project managed through a PPP may consist of planning and design, construction, equipment, operation and maintenance of a new infrastructure work for the provision of a service of general interest; planning and design, rehabilitation or improvement, equipment, operation and maintenance of an existing infrastructure work for the provision of a service of general interest; a combination of the two previous ones; all kinds of productive activities, research and development.

Self-financed projects: those whose income comes from the price paid by the final users; and Projects with public financing, those that require the participation of public investment. The projects will distribute the risks between the public and private sectors; preferably they will be integral, trying to make the private manager in charge of the execution of the project. The results of the projects will be evaluated through specific indicators.

Public projects of private initiative: By public invitation or by their own initiative, private companies may propose to the Administration the execution by delegated project management. The delegating entities will determine the public interest of the project within a maximum term of six months. Once the private initiative project has been incorporated into the PPP Project Program, the private proponent will have a term of six months to prepare the feasibility study. The private proponent will intervene on equal terms with the other interested parties, with the only exception of a bonus of up to ten percentage points in the evaluation of its offer.  He will not have the right to match or improve the offer of the best qualified bidder.

Participants in a PPP project: the delegating entities will be the public administrations that own the competence that will be delegated, public companies are not considered delegating entities; the private manager may be a corporation constituted according to Ecuadorian legislation, with a specific purpose to attend the public project. The private manager may adopt another authorized figure in the legal system according to the specifications of the application.

Economic-financial terms: the private manager, as consideration for the activities assumed, may receive contributions from the public budget, payments made by the final users, or a combination of both. The income of the PPP project will be used to cover the investment and operating costs and expenses of the PPP project and the remuneration of the private manager. When the private manager does not have a direct relationship with the users or beneficiaries of the PPP project, the public administrations may constitute a trust business to guarantee the respective payments. In its relationship with third parties that finance the PPP project, the private manager will have the necessary autonomy and sufficiency to provide the guarantees required on the estate and rights of the delegated management contract that are their exclusive property, without the need for prior authorization of the entity, except in cases where their acts or contracts may imply that the third party is able to suspend public service or affect service levels.

PPP project cycle and administrative procedure

The objectives to be achieved must be established in the planning and project selection stage. It is up to the delegating entity to establish problems, effects, causes and objectives to identify the needs to be satisfied.  Preliminary evaluation of sustainability and fiscal risks: it oversees the Sustainability and Fiscal Risks Unit of the Ministry of Economy and Finance. The Committee should determine the convenience of the PPP modality. With the opinion of sustainability, the delegating entity will submit to the Committee’s consideration its request for the granting of tax benefits and incentives in accordance with the PPP Law. As part of the project cycle, public bidding and contracting are regulated. Any legal entity, national or foreign, may participate in the contests for the selection of the private manager. The offers will be evaluated by a contracting committee.

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Regulatory reform to the regulation for the application of the organic law for the regulation and control of market power

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The Regulatory Reform of the Regulation for the Application of the Organic Law for the Regulation and Control of Market Power, issued by Executive Decree 1193 by President of the Republic on November 17th, was published in the Suplement to the Official Registry No. 341 on December 1st. (The “RALORCPM” and the “Reform to the RALORCPM”, as applicable).

Through this Reform to the RALORCPM, improvements and corrections are introduced that were necessary for the proper application of the Organic Law of Regulation and Control of Market Power (the “LORCPM”). The most relevant changes refer to the following:

– The restoration of the regulatory authority of the Superintendency of Market Power Control (the “SCPM”) to issue regulations of general application, authority which had been eliminated in 2016, limiting it to the issuance of regulations exclusively of an administrative and internal control field. The Reform to the RALORCPM includes an obligation of the SCPM to issue technical regulations -of general application- to regulate:

  • The calculation and determination of fines for infractions
  • Criteria on the definition of economic group and business relationships
  • The conditions for the exemption from the prohibition of agreements between competitors, when they contribute to improve production or marketing and distribution of goods and services, or to promote technical or economic progress.

– Replacement of the analysis process prior to the authorization of merger operations subject to mandatory notification by a process in two phases:

1. In those cases which the SCPM determines that the operation is harmless, based on the information provided, it will issue its authorization within 25 days in Phase 1.

2. In those cases where further analysis or information is required from the parties or other economic operators to determine the possible implications of an economic concentration operation, or where concerns are raised from a competition point of view, the SCPM will resolve on the authorization in Phase 2, observing the terms established in the LORCPM; that is, within a maximum period of 60 days, the course of which may be suspended in the investigation stage to collect information for up to 45 days, or extended for up to 60 days by motivated reasons.

– Definition of restrictive competition agreements and conducts by object: The provision was improved to clearly determine which of the agreements and restrictive practices determined in article 11 of the LORCPM constitute restrictive practices by object – those that imply serious restrictions on competition, even in the event that they have not achieved the desired effect – and its exclusion from the application of the sanctions exemption regime and the de minimis rule provided for in the LORCPM.

The other reforms constitute improvements that allow a more adequate and clear application / interpretation of the law, in relation to:

  • The publication of sanctioning resolutions by the SCPM: Must be published on the SCPM website as well as the publication of an extract in the press, by the offender, once they are definitive.
  • The expansion of criteria to determine (i) economic groups and (ii) relationships between economic operators
  • Elimination of the expiration of preventive measures issued prior to the initiation of a formal investigation
  • Application of exemptions to the prohibition of agreements between competitors, when they contribute to improve the production or marketing and distribution of goods and services, or to promote technical or economic progress.
  • Definition of the moment in which the conclusion of the agreement that results in an economic concentration operation originates.
  • Improvement of the wording in relation to the procedure of investigations initiated ex officio and at the request of a public administration entity.

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