On January 30th 2017 came into effect the Resolution nº 4.533/2016 and the Circular nº 3.814/2016, both edited by the Brazilian Central Bank – BACEN, changing the rules governing the registration of foreign capital invested in national companies.
Foreigner capital of direct investment (named IED) constitutes a share of the capital stock of Brazilian companies coming from investors (individual or corporate entity) nonresidents in the country or with headquarters outside the country, fully paid or acquired according to the applicable legislation as well as of capital detached of foreign companies authorized to operate in Brazil.
For means of registration before BACEN, it is not considered foreign investments the intergroup investments of nonresident investors acquired in financial or capital markets that constitutes investment portfolio, also subjected to registration before the BACEN.
The registration of foreign investments was already mandatory, subjected to the following legislation: Federal Law nº 4.131/62, Federal Law nº 11.371/06, Decree nº 55.762/65 and Resolutions nº 3.568/08, 3.312/05, 3.844/10, 4.373/14 and Circulars nº 3.691/13, 3.690/13 e 3.689/13, all issue by the Brazilian Central Bank.
With the advent of Resolution nº 4.533/2016, it became instituted, among other matters, the accountability of the person responsible for the registration of the operation in the BACEN´s system regarding the veracity, legality and economic basis of the declarations provided.
In turn, Circular nº 3.814/2016 established new rules and terms for the registration of foreign capital.
According to the above mentioned Circular, companies which possess net worth or total of assets worth more than R$250,000,000.00 (two hundred and fifty million reais) must formalize the declarations on specific dates, specifically:
• Until March 31st, referring to the base date of December 31st of the previous year;
• Until June 30th, referring to the base date of March 31st ;
• Until September 30th, referring to the base date of June 30th;
• Until December 31st, referring to the base date of September 30th.
Companies which possess net worth or total of assets worth less than R$250,000,000.00 (two hundred and fifty million reais) must declare the foreign capital only once a year, until March 31st. It must be informed in the system the updated corporate structure of the company, considering as reference the date of December 31st of the previous year.
That said, all the Brazilian companies that have received foreign capital investments must comply with all the rules described above, observing the deadlines for the formalization of the declarations, under penalty of application of the sanctions foreseen in the Resolution nº 4.104/2012 of the BACEN.