SecProbe.io

CORRESP
1
filename1.htm

Shearman & Sterling LLP

FAX: +55 11 3702-2224
www.shearman.com
FARIA LIMA FINANCIAL CENTER

AVENIDA BRIGADEIRO FARIA LIMA, 3400

04538-132 SÃO PAULO—SP

BRAZIL

+55 11 3702-2200
ABU DHABI
BEIJING

BRUSSELS
DÜSSELDORF
FRANKFURT
HONG KONG
LONDON

WRITER’S DIRECT NUMBER:
 (55) 11 3702 2227

WRITER’S EMAIL ADDRESS:
sfrautschi@shearman.com

November 11, 2005
MANNHEIM
MENLO PARK
MUNICH

NEW YORK
PARIS
ROME
SAN FRANCISCO
SÃO PAULO
SINGAPORE
TOKYO
TORONTO
WASHINGTON, D.C.

BY EDGAR AND FACSIMILE

Mr. Larry Spirgel

Assistant Director

Division of Corporation Finance

Securities and Exchange Commission

450 Fifth Street, N.W.

Washington, D.C. 20549-0405

Fax: (202) 772-9205

Tele Norte Celular
Participações S.A.,

Form 20-F for the year ended December 31, 2004

File No. 333-09514-09

Dear Mr. Spirgel:

                Tele
Norte Celular Participações S.A., (the “Company”) has
received the Staff’s supplemental comment letter dated October 25, 2005 concerning
the above-referenced filing on Form 20-F, following up on its comment letter dated July
26, 2005. On behalf of the Company, we advise you as follows regarding your supplemental
comments as noted below:

Form 20-F for Fiscal
year Ended December 31, 2004
Consolidated Statements of Operations and Comprehensive Income, page F-6

SEC Comment No. 1.

We are still considering
your response to comment 5.

Shearman & Sterling LLP is a
limited liability partnership organized in the United States under
the laws of the State
of Delaware, which laws limit the personal liability of partners.

Response to Comment No. 1.

As discussed on the phone with
Melissa Hauber, Staff Accountant, on November 3, 2005, we understand this Comment to refer
to the substance of the Staff’s supplemental comment regarding an identical issue
raised with respect to Telemig Celular Participações S.A.. In the
Staff’s letter to that company on the same date, you wrote:

We note your response to prior comment 4. Please describe the ICMS, PIS and COFINS taxes for
us in more detail and address the following items:

•
Tell
us what you mean by your statement that “taxes paid on allowable inputs are offset
against taxes determined upon sale to the Company’s customers.”

•
Describe
your obligations with respect to these taxes. Tell us whether you are responsible for paying
the taxes to the taxing authorities, regardless of whether you are able to collect
the taxes from your customer.

•
Are
you required to pass those taxes on to your customers?

•
Describe
for us in more detail how you determined that you are not the primary obligor with respect
to these taxes.

In response to this comment, we
describe below the ICMS, PIS and COFINS taxes in more detail:

ICMS:
Imposto sobre Circulação de Mercadorias e
Serviços, or Tax on Circulation of Goods and Services — ICMS,
which is separately disclosed in the invoices to customers,
is a state tax imposed at rates varying from 7% to 35% (effective rates 14%, 14% and 13%
of gross revenues for 2004, 2003 and 2002, respectively) on certain revenues from the sale
of goods and services, including telecommunications services. The tax is levied on the
value added by the Company’s operations (in other words, the ICMS paid on inputs is
taken as a credit against the ICMS collected on sales transactions).

COFINS:
Contribuição para Financiamento da Seguridade Social,
or Contribution to Financing Social Security — COFINS, is a federal social
contribution tax imposed on the gross operating revenue less discounts and returns. For
telecommunications services, the rate is 3.0% and is applied to taxable revenues. Since
2004, the tax is levied on the value added by the Company’s non-telecommunications
services operations (in other words, the COFINS paid on inputs is taken as a credit
against the COFINS collected on sales transactions).

PIS:
Programa de Integração Social, or Social Integration Program
— PIS, is a federal social contribution tax imposed on the gross operating revenue
less discounts and returns. For telecommunications services the rate is 0.65% and is
applied to taxable revenues. Since 2003, the tax is levied on the value added by the
Company’ non-telecommunications services operations (in other words, the PIS paid on
inputs is taken as a credit against the PIS collected on sales transactions).

2

In relation to ICMS taxes, the
statement “taxes paid on allowable inputs are offset against taxes determined upon
sale to the Company’s customers” refers to the tax credits related to the
ICMS embedded in the Company’s acquisition costs of handsets and fixed assets, and
materials or services used by the Company to provide wireless telecommunications services
and to sell handsets and accessories. In accordance with Brazilian law, the Company
offsets the aforementioned ICMS credits every month against the ICMS payable upon the sale
of handsets, accessories and telecommunications services to customers.

In relation to PIS and COFINS taxes,
the statement “taxes paid on allowable inputs are offset against taxes determined
upon sale to the Company’s customers” refers to the tax credits related to
the PIS and COFINS embedded in the Company’s acquisition costs of handsets and fixed
assets, and materials or services used by the Company to provide
non-telecommunications services and to sell handsets and accessories. Every month
the Company offsets the aforementioned PIS and COFINS credits against the PIS and COFINS
payable upon the sale of handsets, accessories and non-telecommunications services
to customers. For telecommunications services, PIS and COFINS are cumulative, so the
Company does not offset the tax paid on the inputs upon the sale of such services.

In relation to the determination of
the primary obligor with respect to ICMS, PIS and COFINS taxes, the Company stated in its
response to Comment No. 4 that is was “placing an emphasis on the primary obligor
indicator” referring to the fact that under Brazilian law most of such taxes are
passed on to the final customer. Thus, the Company considered the characterization of
reimbursements received for such expenses incurred as revenue appropriate. The Company is
responsible for paying such taxes to the Brazilian tax authorities, regardless of whether
it is able to collect the taxes from its customers. It is important to highlight that the
ICMS, PIS and COFINS taxes are paid by the Company to the tax authorities in amounts equal
to the amounts passed on to the final customers as described in the two preceding
paragraphs, thus providing no margin to the Company.

However, after further review of the
provisions of ETIF 99-19 and ETIF 01-14, the Company currently understands that revenues
obtained from the billing of PIS and COFINS taxes could be classified as gross, and the
payment of those taxes to the tax authorities could be classified as cost of sales for US
GAAP purposes. Both PIS and COFINS are taxes imposed on the Company’s revenues, for
which the Company subsequently seeks reimbursement from its customers. Therefore, under US
GAAP, the Company would be considered the primary obligor with respect to these taxes (PIS
and COFINS). Because these two taxes represent only 4% of gross revenues for
2004, 2003, 2002, we respectfully suggest to reclassify these taxes in the
Company’s income statement under US GAAP in its annual reports on Form 20F going
forward.

3

Note 15 –
Contingencies, page F-31

(a) Tax Contingencies,
page F-31

SEC Comment No. 2.

We note your response to prior
comment 6. It is still unclear to us how you accounted for the release of the escrow
deposit relating to the State treasury. Tell us the offsetting entry that you recorded in
conjunction with the reduction to the provision and clarify how you originally accounted
for and presented the deposit. You may wish to provide example journal entries to
illustrate your accounting for the deposits and its release.

Response to Comment No.
2.

Please find below the journal entries
that were recorded in response to Comment No. 2 relating for the accounting for the release of
the escrow deposit relating to the State Treasury:

At the time the Company made the ICMS
payable provision, the following journal entries were recorded:

Dr: Sales deductions – ICMS
(Income Statement)
Cr: Provision for contingencies

At the time the Company made the escrow
deposit, the following journal entries were recorded:

Dr: Escrow deposits
Cr: Cash and
equivalents

The escrow deposits were presented
offsetting the provision.

At the time the escrow deposit was released
by the State Treasury, the following journal entries were recorded:

Dr: Provision for
contingencies
Cr: Escrow deposits

4

If you have any questions or wish to
discuss any matters relating to the foregoing, please contact me at (011-55-11) 3702-2227
or Mr. Ricardo Perpetuo of the Company at (011-55-31) 9950-2977 .

     Very truly yours,

/s/ Sky Frautschi

cc:
Melissa Hauber – Staff Accountant – Securities and Exchange Commission

Carlos Pacho – Senior Assistant Chief Accountant – Securities and Exchange Commission

Antônio José Ribeiro dos Santos — Tele Norte Celular Participações S.A.

Ricardo Del Guerra Perpetuo — Tele Norte Celular Participações S.A.

Leonardo Dias — Tele Norte Celular Participações S.A.

Ivan Clark – PricewaterhouseCoopers Auditores Independentes

Andrew Janszky — Shearman & Sterling LLP

5