January 2023

_the january│2023 edition of our Newsletter has the following highlight:

– CVM Resolution introduces new rules for investment funds

– Brazilian Central Bank publishes resolutions regarding the new Foreign Exchange Law

– Federal Revenue publishes ruling about the CNPJ (taxpayers’ registration number)

– CVM publishes the 2023-2024 Risk-Based Supervision Biennial Plan

 

_CVM Resolution introduces new rules for investment funds

 

The Brazilian Securities and Exchange Commission (“CVM“) published, on December 23, 2022, CVM Resolution 175 (“RCVM 175“), which regulates the incorporation, operation, and disclosure of information of investment funds. RCVM 175 is composed of a general part applicable to all categories of investment funds and of schedules referring to specific rules applicable to different categories of funds.

 

Within the general part, RCVM 175 consolidated changes brought by Law 13.874, published on September 20, 2019 (“Economic Freedom Law“), with emphasis on:

 

  • limitation of liability of quota holders to the value of their quotas;

 

  • the possibility of creating classes of quotas with segregated assets;

 

  • the application of civil insolvency to investment funds.

 

In the part regarding to specific categories of funds, RCVM 175 has two schedules. The first one is about Financial Investment Funds (“FIF“), comprising shares, foreign exchange, multimarket and fixed income, and the second one is about Credit Rights Investment Funds (“FIDC“).

 

Regarding FIFs, the following new provisions of RCVM 175 stand out:

  • allows investments in environmental assets and crypto actives;
  • increases the concentration limits per type of financial asset; and
  • increases the capital risk limits’ exposure (leverage).

 

Regarding FIDCs, RCVM 175 sets forth:

  • assigns liability to managers for structuring the fund and verifying the ballast of credit rights; and
  • includes the obligation of registration of credit rights.

 

According to CVM, the other categories of funds not yet covered by the new rule will have their own Schedules attached in the resolution before entering into force, on April 3, 2023.

 

CVM Resolution 175 can be accessed in Portuguese through the link below:

https://conteudo.cvm.gov.br/export/sites/cvm/legislacao/resolucoes/anexos/100/resol175.pdf

 

_Brazilian Central Bank publishes resolutions regarding the new Foreign Exchange Law

 

To regulate Law 14.286, published on December 29, 2021 (“New Foreign Exchange Law“), which came into force on December 31, 2022, the Brazilian Central Bank (“BACEN”) has published a series of resolutions regarding the following topics:

 

  • BACEN Resolution 277 (“Resolution 277“): foreign exchange market, and inflows and outflows in Brazilian Real and foreign currency amounts in the country;

 

  • BACEN Resolution 278 (“Resolution 278“) and Resolution BCB No. 281 (“Resolution 281“): respectively, foreign credit transactions and foreign direct investment, and transitory provisions related to Resolution 278;

 

  • BACEN Resolution 279 (“Resolution 279“): Brazilian capital abroad;

 

  • BACEN Resolution 280 (“Resolution 280“): definition of the terms “resident” and “non-resident”, as mentioned in the New Foreign Exchange Law.

 

It is noteworthy that, in compliance with the rules set forth in Decree 10.139, of November 28, 2019 (“Decree 10.139“), BACEN has standardized the terminology of regulations it issues in ordinances, resolutions or normative instructions.

 

The resolutions can be accessed in Portuguese through the links below:

 

Resolution 277:

https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20BCB&numero=277

 

Resolution 278:

https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20BCB&numero=278

 

Resolution 279:

https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20BCB&numero=279

 

Resolution 280:

https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20BCB&numero=280

 

Resolution 281:

https://www.bcb.gov.br/estabilidadefinanceira/exibenormativo?tipo=Resolu%C3%A7%C3%A3o%20BCB&numero=281

 

_Federal Revenue publishes ruling about the CNPJ (taxpayers’ registration number)

 

The Federal Revenue of Brazil published on December 6, 2022, Normative Instruction RFB 2119 (“IN 2119“), which changes some understandings about the Brazil National Registry of Legal Entities Number (“CNPJ“). IN 2119 went into effect on January 1, 2023, intending to simplify and debureaucratize procedures.

 

Among the amendments, IN 2119 brings some innovations related to the process of declaration of the ultimate beneficial owner and starts to admit the issuance of CNPJ of companies with only 1 officer, in addition to allowing the registration of managers residing abroad, provided that an attorney-in-fact residing in Brazil is indicated.

 

 

 

The following changes introduced by IN 2119 are also worth mentioning:

 

 

  • the decrease of accessory tax obligations for those who request temporary suspension of their activities;

 

  • the possibility of issuing a certificate to prove the non-existence of a bond between the individual who is a representative, partner, or administrator and a CNPJ.

 

IN 2119 can be accessed in Portuguese through the link below:

http://normas.receita.fazenda.gov.br/sijut2consulta/link.action?idAto=127567

 

_CVM publishes the 2023-2024 Risk-Based Supervision Biennial Plan

 

CVM published, on December 21, 2022, the new Risk-Based Supervision Plan for the 2023-2024 biennium (“2023-2024 Plan“), in which it introduced the so-called “emerging risks”. The biennial risk-based supervision plans are part ofCVM’s strategy to identify, analyze, assess, address, and monitor securities market risks.

 

CVM Resolution 53/2021, of October 15, 2021 (“RCVM 53“), which regulates CVM’s Integrated Risk Management System, considers as risk the events or series of events previously identified whose possible occurrence represents a threat to the fulfillment of its legal mandates, and were classified until then as economic, operational or integrity related.

 

The 2023-2024 Plan kept some risks from the previous two-year plan, such as those concerning the marginal market, related party transactions, prevention and fighting against money laundering and terrorism financing, and proliferation of weapons of mass destruction, and indicated new prioritized risks, such as those linked to the securities offering. The innovation in the 2023-2024 Plan is the inclusion of emerging risks, which are divided into three types:

 

  • influencers risk, created due to the expressive increase of natural persons as investors and the performance of digital influencers who explore topics related to the securities market;

 

  • securities market governance risks in ESG actions, a wide relevance topic in the national and international scenario that, as of 2023, was included in the reference form (formulário de referência) that must be disclosed by Brazilian listed companies; and

 

  • risks regarding unregistered security tokens offerings by large crypto active brokerage houses, a relevant matter due to the increase in tokenization procedures that have been occurring in the market and whose monitoring will allow CVM to dimension the token market and to point out possible securities framing.

 

CVM’s thematic supervision is carried out by several technical areas, which shall coordinate efforts to offer a comprehensive and multifaceted analysis.

 

We contributed on this subject in an article published in the Legislação & Mercado section of Capital Aberto on January 25, 2023, which can be accessed in Portuguese through the link below:

https://legislacaoemercados.capitalaberto.com.br/influenciadores-e-acoes-esg-na-mira-da-cvm/

 

The 2023-2024 Plan can be accessed in Portuguese through the link below:

https://www.gov.br/cvm/pt-br/acesso-a-informacao-cvm/acoes-e-programas/plano-de-supervisao-baseada-em-risco/2023-2024/Plano%20Bienal%20CVM%20SBR%202023-2024/@@download/file/plano_bienal_cvm_sbr_2023-2024.pdf

Influenciadores e ações ESG na mira da CVM

O rápido ritmo de inovação nos mercados financeiro e de capitais vem provocando mudanças em várias frentes – e os reguladores precisam estar atentos à essa evolução.

Posted in: Uncategorized

January 2022

_the january│2022 edition of our Newsletter has the following highlight:

– CVM revises and reduces content of the reference form

– Legislative and regulatory updates regarding publications ordered by the Brazilian Corporate Law, in particular for financial statement

– Proximity of the deadline for adaptation of listed companies to the changes of the Novo Mercado Regulation

_CVM revises and reduces content of the reference form

 

On December 22, 2021, the Brazilian Securities and Exchange Commission (“CVM”) issued Resolution No. 59 (“Resolution 59/2021”), which amended CVM Instruction No. 480/2009, and CVM Instruction 481/2009, with the aim to reduce the cost of compliance and review and reducing the content of the reference form (Formulário de Referência), in addition to providing greater transparency in the disclosure of information of environmental, social and governance nature (“ESG” ), in order to follow the global trend. The aforementioned rule was edited after a public hearing was held, which received comments between December 07, 2020 and March 08, 2021.

The main changes made to CVM Instructions 480 and 481, as a result of the passing of Resolution 59/2021 are:

  • Reduction from 3 (three) to 1 (one) fiscal year of the time horizon in relation to which the information must be provided in the reference form (Formulário de Referência), by companies already registered, including when they present the document within the context of a public offering.
  • Limitation of the requirement for management comments only to significant changes to items in the income and cash flow statements, instead of comments on each item regarding the financial statements.
  • Reformulation of the presentation of risk factors, with greater emphasis on 5 (five) which are considered to have the greatest impact on the company.
  • Inclusion of new information on ESG aspects, in particular with regard to climate issues, in a “practice-or-explain” format.
  • Additional clarifications on the provision of information regarding the diversity of the body of managers and employees and provision for the opening of information by hierarchical level, in the case of employees.
  • Additional rules regarding the communication of related party transactions specifically in relation to the execution of related transactions.

Regarding disclosure of ESG information, the reform imposes an obligation on companies to inform whether they disclose information on ESG indicators in an annual report or in another type of document, and if so, provide more detailed information.

Finally, it is worth mentioning that Resolution 59/2021 comes into force on January 2, 2023, considering the need to adapt systems and routines of companies. As a result, the annual update of the 2022 Reference Form shall still observe the rules and content of the Reference Form prior to Resolution 59/2021.

Nevertheless, CVM suggests that, since the information to be disclosed in 2023 will have the fiscal year ended in 2022 as the base date, companies should start preparations to report the new information, especially regarding ESG, before its entry into force.

Resolution 59/2021 can be accessed in Portuguese through the following link:

http://conteudo.cvm.gov.br/legislacao/resolucoes/resol059.html

 

_Legislative and regulatory updates regarding publications ordered by the Brazilian Corporate Law, in particular for financial statement

 

On January 1, 2022, the new wording of article 289 of Law No. 6,404/76 (“Brazilian Corporate Law”) came into force, which was amended by Law No. 13.818/2019, which allows publications in a summarized form and in a newspaper, therefore, publication in the Official Gazette is no longer mandatory. Nevertheless, the full version of the corporate acts and financial statements published in summary form must be available for access on the website of the newspaper, with digital certification of the authenticity of the documents.

Regarding the publication of financial statements in a summarized form, it shall contain, at least, in comparison with the data of the previous fiscal year, information or global values related to each group and the respective classification of accounts or records, as well as extracts of the material information contemplated in the explanatory notes and in the opinions of the independent auditors and the fiscal council (conselho fiscal), if applicable.

In order to provide guidance to listed companies on the new format to publish their financial statements, on December 20, 2021, the CVM issued a Guidance Opinion No. 39, in which it stated the minimum required information to be published (“Guidance Opinion 39/2021”).

Guidance Opinion 39/2021 also includes the wording of notices that shall necessarily precede the summary of the financial statements, in order to avoid any doubts by readers.

With regarding to the requirement contained in the new wording of the Brazilian Corporate Law on minimum information, CVM understands that the following information must be disclosed, compared to data from the previous fiscal year: (i) summarized balance sheet; (ii) summarized income statement for the year; (iii) summary statement of comprehensive income; (iv) summary statement of cash flows; (v) summary statement of changes in equity; and (vi) summary statement of added value. It is important to emphasize that Guidance Opinion 39/2021 details how the aforementioned information should be presented.

It is also worth mentioning that the new wording of article 289 of the Brazilian Corporate Law allows the disclosure of explanatory notes in a summarized form, which must be prepared based on the complete explanatory notes available in the audited financial statements, in addition to the disclosure of the relevant parts of the independent auditor and fiscal council (conselho fiscal) opinion, if applicable.

Law No. 13,818/2019, which amended the Brazilian Corporate Law, and CVM Guidance Opinion No. 39/2021 can be accessed in Portuguese through the following links:

http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2019/Lei/L13818.htm#art1

http://conteudo.cvm.gov.br/legislacao/pareceres-orientacao/pare039.html

 

_Proximity of the deadline for adaptation of listed companies to the changes of the Novo Mercado Regulation

 

The deadline for the adaptation of listed companies to the rules of the Novo Mercado Regulation in force since January 2, 2018 is approaching. The initial deadline was supposed to expire at the ordinary shareholders’ meeting that would approve the 2020 financial statements, but was extended by B3 SA – Brazil, Bolsa, Balcão for the ordinary shareholders’ meeting that approves the 2021 financial statements, through the Official Letter No. 005/2020-VOP of April 7, 2020, given the uncertainties caused by the beginning of the COVID-19 pandemic.

The adaptation period is only applicable to companies that had already entered the Novo Mercado segment on January 2, 2018. The Novo Mercado regulation in force since January 2, 2018 and the Official Letter No. 005/2020-VOP of April 7, 2020 can be accessed in Portuguese, respectively, through the following links:

https://www.b3.com.br/data/files/B7/85/E6/99/A5E3861012FFCD76AC094EA8/Regulamento%20do%20 Novo%20Mercado%20-%2003.10.2017%20%28Sancoes%20pecuniarias%202019%29.pdf

https://www.b3.com.br/data/files/11/61/FA/1F/E8F51710CF51CE07AC094EA8/OC%20005-2020-VOP%20Orientacoes%20aos%20emissores_Flexibilizacoes%20regulatorias_ RAS2.pdf

January 2021

_the january│2021 edition of our Newsletter has the following highlights:

– Brazilian Chamber of Representatives approves Legal Landmark for Startups

– Brazilian Securities and Exchange Commission accepts term of commitment with Company’s Investor Relations Officer after inadequate disclosure of information

– Brazilian Securities and Exchange Commission decides on the concept of management compensation for corporate purposes and the disclosure of related information

 

The Brazilian Chamber of Representatives approved on December 14th, 2020 the Supplementary Bill n. 146/2019 (Projeto de Lei Complementar 146/2019)  (“PLP 146/2019“), also known as the “Legal Landmark for Startups” (Marco Legal das Startups). Pursuant to the approved project, startups shall be considered entrepreneurial or corporate organizations, recently incorporated or in recent operation, whose performance is characterized by innovation applied to its business model or products or services offered, with (i) gross revenue of up to BRL 16,000,000.00 (sixteen million Reais) and (ii) up to 10 years of registration before the National Registry of Legal Entities (“CNPJ”). In addition, such entities shall declare in their by-laws or articles of incorporation that they use innovative business models for the generation of products or services, or yet be framed in the special tax regime of “Inova Simples”. The Supplementary Bill states that the investor which makes a capital contribution to a startup shall not be considered as a partner or shareholder of such, nor will he be liable for any debt of the company, with express prohibition in the legal text of extending to him the disregard of the legal personality.

 

PLP 146/2019 also brought legislative innovations to other areas of the Brazilian corporate law. The main highlights of the project approved by the Brazilian Chamber of Representatives are:

 

  • Administration of companies: PLP 146/2019 proposes the reduction of the minimum number of officers in companies from 2 (two) to 1 (one) officer;
  • Mandatory publications: closely-held companies with less than 30 shareholders and with annual gross income of up to BRL 78,000,000.00 (seventy eight million Reais) shall be allowed to make their mandatory publications in electronic form and replace the mandatory corporate books by mechanized or electronic registry;
  • Regulation of the capital market: the Brazilian Securities and Exchange Commission (“CVM”) shall regulate favorable conditions for smaller companies (i.e., companies whose annual gross revenue is less than BRL 500,000,000.00 (five hundred million Reais)) to access the capital market, whether by dispensing or modulating (i) the obligation of installing an audit committee (Conselho Fiscal) at the request of shareholders, (ii) the obligation of intermediation by a financial institution in public distributions of securities, (iii) the distribution of the mandatory dividend, (iv) the form of publications ordered by law and (v) the form of determining the fair price and its revision;
  • Stock Options Regulation: the supplementary bill regulates the granting of stock options, which shall be considered as part of the employee and of the individual taxpayer compensation, which shall be considered paid, due or credited at the moment of its exercise.

 

Currently, PLP 146/2019 is in progress in the Federal Senate. More information about PLP 146/2019 can be accessed through the link below (in Portuguese only):

 

https://www25.senado.leg.br/web/atividade/materias/-/materia/146040

 

_Brazilian Securities and Exchange Commission accepts term of commitment with Company’s Investor Relations Officer after inadequate disclosure of information

 

The Administrative Proceeding CVM SEI 19957.010395/2019-04, was initiated by CVM’s Superintendence of Relations with Companies (Superintendência de Relações com Empresas) (“SEP”), in order to determine the inadequate disclosure of relevant information about a publicly-held company’s businesses, considered an infraction of the duty to inform, provided in article 157, §4, of Law 6,404/76 (“Brazilian Corporation Law”) and articles 3rd and 6th, sole paragraph, of CVM Instruction No. 358/02 (“ICVM 358”).

 

The case was originated when SEP analyzed an article, published on a website of a widely spread newspaper, which mentioned some information related to the Company’s Quarterly Information Form (“ITR”), regarding: (i) the company’s expectations of an EBITDA growth of 30% in the following year; and (ii) the company’s expectation to have a debt twice as high as its EBITDA in the next years.

 

When requested by B3 S.A. – Brasil Bolsa Balcão (“B3”), the Company clarified that the statements made on the presentation of the result of the ITR, which took place at the day before the publication of the article, were mere expectations, not constituting guidance (Projeções).

 

Afterwards, once again the company inappropriately disclosed relevant information related to its business, and on such occasion the Investor Relations Officer did not adopt the necessary measures for its wide dissemination. Likewise, when questioned, the company clarified that such information were mere expectations for the future and proposed a term of commitment to end the process.

 

Finally, the Commitment Term Committee decided that it was possible to end the case by entering into a term of commitment, with the assumption of a pecuniary obligation, in the amount of R$510,000.00 (five hundred and ten thousand reais).

 

More information about the term of commitment can be accessed in Portuguese through the link below:

 

https://www.gov.br/cvm/pt-br/assuntos/noticias/anexos/2021/copy_of_20210105_PAS_CVM_SEI_19957_010395_2019_04_parecer_comite_termo_compromisso.pdf

 

 

On December 8th, 2020, CVM’s Board decided in Administrative Proceeding CVM SEI No. 19957.007457/2018-10 on the information to be provided in item 13 of the Reference Form (“FRE“),  the inclusion of amounts paid as social contributions burden by the employer, in the overall amount of the management compensation to be submitted for approval by the general shareholders meeting, pursuant to art. 152 of Brazilian Corporation Law, and the compatibility of the information presented as share-based compensation with the company’s financial statements.

 

The case was based on the request from SEP regarding certain adjustments in the FRE and in the compensation proposal for the management of a publicly-held company, so that the social contributions paid by the employer (item 13.1.b.ii) and the amounts related to the management compensation presented in the FRE as share-based compensation for the last three fiscal years would be compatible with those disclosed in the company’s financial statements (item 13.2.d.v). Furthermore, SEP requested the company to indicate in the next management compensation proposal that until that moment the company was not considering the social contributions in the overall amount.

 

The company re-submitted the adjusted FRE as requested by SEP, however, as they did not agree with SEP’s understanding, they also filed a request for reconsideration, in which they argued that (i) the methodology for preparing item 13 of the FRE differs from the methodology used for recognizing expenses in the financial statements, and as the company presents in its compensation proposal the total amount of the stock options carried out that year, they choose to report the information in the FRE in the same manner; (ii) the social contributions paid by the company stem from a legal imperative and cannot be considered a benefit, not being subject to the shareholders’ approval nor subject to the provisions of accounting pronouncement CPC 33 (R1), as they are not a benefit; (iii) as there are variables in the compensation of the management, it would be difficult for the amount paid by the company to be identical to the amount approved in previous years, and the need to ratify the amounts approved by the general shareholders meeting would generate legal insecurity for the company and its management, with the risk of non-fulfillment of obligations in the event of nonratification.

 

REPORTING DIRECTOR, MRS. FLÁVIA PERLINGEIRO, DECIDED TO PARTIALLY GRANT THE APPEAL, SINCE SHE UNDERSTOOD THAT (I) THE WORDING OF ITEM 13.2.D.V OF THE FRE IS CLEAR IN POINTING OUT THAT THE AMOUNTS TO BE INFORMED THERE FOR THE LAST THREE FISCAL YEARS ARE THOSE REFLECTED IN THE RESULTS OF THE RESPECTIVE FISCAL YEARS, I.E. THEY REFLECT THE ACCOUNTING TREATMENT APPLICABLE TO THE FINANCIAL STATEMENTS, WITHOUT PREJUDICE TO DISCLOSURE, IN ITEM 13. 16, AS COMPLEMENTARY INFORMATION, OF THE AMOUNTS THAT REFLECT THE COMPANY’S OWN METHODOLOGY; AND (II) SOCIAL CONTRIBUTIONS CANNOT BE CONSIDERED AS “BENEFITS OF ANY NATURE” FOR THE PURPOSES OF ARTICLE 152 OF THE BRAZILIAN CORPORATION LAW, AS THE SOCIAL SECURITY CONTRIBUTION PAID BY THE COMPANY IS NOT EVEN DIRECTLY RELATED TO THE AMOUNT OF THE SOCIAL SECURITY BENEFIT THAT THE MANAGER, IN THE FUTURE, IF ELIGIBLE, MAY RECEIVE FROM THE BRAZILIAN SOCIAL SECURITY INSTITUTE (“INSS“). THE BOARD UNANIMOUSLY FOLLOWED THE VOTE OF THE REPORTING DIRECTOR.

 

The Reporting Director’s vote can be found in full in the link below (in Portuguese only): http://conteudo.cvm.gov.br/export/sites/cvm/decisoes/anexos/2020/20201208/1361_19_Voto_da_Relatora.pdf