The estate planning is a way for you to organize and define it as the wealth of a person is to be distributed after your death. Although death is an inevitable reality, it is how we deal with it, especially in relation to the transmission of property, and rights, and can be planned in advance and carefully.
This plan aims to ensure that the order and the fulfillment of the will of the deceased, while also protecting the rights of the heirs, and of avoiding conflicts in the family, and are generally surrounded by the two main tools: the gift of life and for the last will and testament.
In Brazil, the Civil Code establishes the rules that establish the way in which heritage can be dealt with, particularly in relation to the protection of the heirs are required.
In this context, the brazilian legislation to create a balance between the freedom of the testator (the one who makes the will), and for the protection of the rights of the heirs. Therefore, it is essential to understand the ways of the donation, testament and new testament, and the legal implications of giving in to life as a legitimate part of the inheritance, and to the limitations imposed by the Civil Code.
In this article, we will cover the main concepts related to the covenant and grant, to explore the different aspects of these methods and how they operate in the context of estate planning.
Gift of life
The gift of life this is just one of the ways of the transfer of property to another person-even during the lifetime of the donor. Other than the will, and that happens after death, and the gift of life allows you, the donor will have the opportunity to see the satisfaction of your desires, and it is still alive.
This is the kind of gift can be used as a means of planning for the succession, allowing the stockholders to be streamed in and out to avoid the risk of conflict at the time of his death.
Should be noted that if the goods are donated to a property, the validity of the free will that requires the drafting of the deed (art. 108, DC and to register on the registration of immovable property (art. 1.245), as it is, without a record, the gift does not have any effect in relation to third parties.
In addition to this, the gift of life is to be subject to the specific rules, especially when it comes to a legitimate part of the estate, which must be complied with. That is, the donor may not donate goods, which, in the case of a death, is committed to the rights of the heirs are required.
Testament
The testament it’s a way for the declaration of the will made by a person who is to be executed after his death. It is one of the main instruments of the Law of Succession, being regulated by the articles of 1.857 at 1.990 of the brazilian Civil Code. It is, therefore, an act of unilateral, personal, revocable, the effectiveness of which does, after the death of the testator.
While it does offer a certain freedom, the will, you also need to follow all the legal regulations, in particular in relation to some legitimate, so that the failure will only be able to indicate freely to those who will get your assets out of the part, which corresponds to 50% of the total stockholders ‘ equity.
This means that you, the tester, you are free to choose the destination of up to 50 per cent of your goods, the called party is available.
There are many different types, will set out in the Civil Code, including the public, in the savannah and in particular, with the specific requirement for each and every one. In general, we can see that in the states
The audience is drawn up in the Tabelionato de Notas, in the presence of a notary public and two witnesses, one being automatically registered in the CENSEC the Central Law-of-Service and Electronic Log;
Cerrado’, is written by the testator, or by a third party, closed, sealed, and delivered to a notary public in the presence of two witnesses in order for it to be saved. The will remain a secret, and it only has of its content is revealed after the child’s death, and it can be open and read, in the presence of the court;
Especially it is written by the testator, and looked at the three witnesses, and then the death must be confirmed in court, to the effect (art. 1.876, civil code).
There are also special arrangements of the will to war or threat of war, or travel to you, such as maritime, aviation, or military.
In the testament, you can include a variety of provisions, including the choice of successors, the appointment of an executor, the appointment of an executor, and the provisions of the nature of non-interest.
For example, it is possible to provide for the authorisation of access to family members or attorneys of the medical records of the deceased, as well as how you can customize your digital legacy by naming a person you trust to unlock the phone, manage your email accounts, social networks, or request that we delete the content is in compliance with the LGPD, and the Civil rights Framework for the Internet.
Although you do not have the financial straight forward, these provisions protect the dignity, privacy, and the memory of the deceased, part of the estate planning in the digital reality art.
In all cases, the will may be revoked or changed at any time; provided, however, that compliance with the legal requirements.
But in the end, the one who is standing?
The standing is the share of 50% of the estate, which, by virtue of a law, it must be assigned to heirs, as necessary, to include the following: your spouse / partner (or partners), the ancestors (parents, grandparents, and all the descendants (children, grandchildren).
In respect of the spouse, it is important to point out that, it will not be the heir to need this if you are married, under the scheme, which will allow entitlement to inheritance, or concur with the descendants, or ancestors (art. 1.829, civil code). In the systems of separation, absolute and final in the aquestos, for example, the spouse’s participation may vary so it is important to analyse a case by case basis. In addition, as a general rule, ancestors (parents, grandparents) will only inherit if there are no top-down (art. 1.829, and (II).
In this case, the portion of the estate on the legitimate, it may not be laid freely by the testator, that is, it does not deserdar’ for these heirs, as they would like.
For a tester who wants to give away his assets, free-form, he may have called the ‘available’ out of the inheritance, which is the part that is left over after you have adjusted the part of a legitimate one.
The limits of the Donations will and Testament
So much for the gift of life and the will must comply with the limit for the standing. If the donation exceeds the value of the heirs may demand the return of the goods to be donated to compensation at the time of participation.
In addition to this, when a donation is made to an heir of life; it can be treated as an advance to the legitimate one. This means that the amount of some good or donated will be considered at the time of the estimate of the share of each heir in the inventory.
It is worth saying that only the offspring that are required for the collection (art. 2.002, civil code). The donations you make to your spouse, domestic partner, or other third parties do not form part of this account is, unless the donor has otherwise stated.
There are, however, the ability of the donor to include a provision for the waiver of the collection, which states that one as well, donated will not be counted as part of the estate, but also as an individual benefit of the heirs. Such a clause can be included either at the time of the donation, as it will, as long as you respect the limit on the amount available.
Some of the other terms that it can be placed both in giving and in the last wills and testaments, which include:
Incommunicability-Prevent the well-donated/tested, it is considered to be a part of the community property in a marriage to the trustee/beneficiary,
amounts that cannot be attached: it Ensures that the property donated by/tested-will not be seized in the event of a debt, the trustee/beneficiary,
Inalienability: which Restricts the sale or transfer of the well, during the lifetime of the donee/beneficiary
‘s Enjoyment: Grants from the donor/testator or by another person, for the right of use of the donated good/tested for as long as I live;
Fallback: Allows the donor to determine that the property to automatically return to its stockholders, or to the person indicated above, if the grantee dies before him, art. 547 CC). In the testaments, there is a reversal, as the heir set up to die before the testator, then the provision shall lapse, unless the testator has provided for replacement of the ordinary in terms of art. 1.947, and the s. s., of the Civil Code.
Other limitations may be imposed by the donor/testator, as to the conditions or arrangements on the use of the property. However, these provisions have not infringe on the legitimate part, or the provisions on the rights of the heirs are required.
Conclusion
To donate goods, or to draw up a will is legitimate ways to decide on the fate of your very own property. However, it is important to understand that there are rules that must be followed, especially with regard to the protection of the heirs are required.
The use of gifts in life, and it will, it is possible to establish conditions that guarantee the continuity of the goods and to maintain the legacy of the family. The estate planning appropriate to make sure that your goods are to be transmitted, in accordance with his will, and helps to prevent conflict, reduce costs and, at the same time, with respect to the rights of the heirs.
However, it is essential to remember that so much of the gift of life and the transmission will be subject to the ITCMD, state tax, whose tax rates and bands of the exemption varies greatly in accordance with local laws and regulations. To assess in advance the impact of such a tax, and, where applicable, schedule of donations, over time, can mean the economy is relevant and to enhance the effectiveness of the plan.
Therefore, the dimensions of social, economic, family, and the tax should be assessed in an integrated manner, preferably with the advice of the legal and accounting expertise.
Reference (s):
BRAZIL. Lei nº 10.406, de 10, jan. 2002. On the Civil Code. The Official journal of the european Union: Section 1 Brasília, DF, brazil, on 11 jan. 2002. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm. Available at: [accessed 13 jun. The year 2025.
BRAZIL. Law no. 12.965, de 23 apr. 2014. It establishes the principles, guarantees, rights and obligations for the use of the Internet in Brazil’s Marco Civil da Internet). The Official journal of the european Union: Section 1 Brasília, DF, brazil, the 24-oct. 2014. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm. Available at: [accessed 13 jun. The year 2025.
BRAZIL. Lei nº 13.709, the 14th of August. 2018. The General law on the Protection of Personal Data (LGPD). The Official journal of the european Union: Section 1. the capital city of Brasilia, the 15th of August. 2018. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/L13709.htm. Available at: [accessed 13 jun. The year 2025.
BRAZIL. Law no. 13.787, 27 dec. 2018. On the scan, and the use of the computer system for storage, storage, and handling of the medical record of the patient. The Official journal of the european Union: Section 1 Brasília, DF, brazil, on 28 dec. 2018. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/L13787.htm. Available at: [accessed 13 jun. The year 2025.
SÃO PAULO (State). Law no. 10.705, 28 dec. The year 2000. It’s about a Tax on the Transmission of the “Cause of Death” and a Donation of Any Property, or other Rights (ITCMD). Diário Oficial do Estado de São Paulo, São Paulo, 29 dec. The year 2000. Available at: https://www.al.sp.gov.br/repositorio/legislacao/lei/2000/lei-10705-28.12.2000.html. Available at: [accessed 13 jun. The year 2025.
Camila dos Santos
Graduated in Law at Centro Universitário Padre Anchieta (2024). She is the author of the Articles. Paralegal have Associated with it.
Helen Rodrigues de Souza
She graduated in Law from the Pontifical Catholic University of Campinas, sp, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). Training in Human Rights and Social, from the Portuguese Catholic University in Lisbon (2020). Training in Data Protection Officer by – Law, the General Data Protection by Renato Saraiva Education Complex (2021). College Education on the Topics of Advanced Private and Public Law from the University of Santiago of Compostela (in 2021). A Master’s degree in Business Admnistration in Tax Management from the University of São Paulo and the Escola Superior de Agricultura ‘ Luiz de Queiroz (2022). Participation in the book “the Tax on agriculture”, by editora Lumen Juris (2023). The training in Litigation, Strategic, Getulio Vargas Foundation (2024). A post-graduate degree in Corporate Law from the Pontifical Catholic University of Rio Grande do Sul (2024). Attending a Latin-Legum Magister in Corporate Law and Capital markets, the Brazilian Institute of Capital markets in Sao Paulo. She is the author of the articles. As secretary-General of the Committee of the Business Law of the OAB/SP) the 33rd Subsection, Jundiaí, SP, brazil). The advocate and head of the Department, the Advisory does have Associated with it.
What You Need To Know About A Corporate Re-Organization!
A!!! dinamicidade in the business environment, and imposes a constant challenge for organizations, requiring adjustments to the structural and strategies to ensure sustainability, competitiveness, and efficiency. In this context, the restructuring is also emerging as an essential step to optimize operations, reduce costs, and promote the sustainable growth of the business. It’s a strategic tool is essential to bring the enterprise to the needs of your business, and to mitigate the risks and maximizing the opportunities.
What is Corporate restructuring?
Corporate restructuring refers to the number of structural changes carried out in the enterprise, involving changes in the corporate structure, legal structure, or organization.
These changes may occur by way of merger, consolidation, spin-off, and the transformation/conversion, as set out in the corporate law in force, in particular with the brazilian corporate Law (Law no. 6.404/76), and the Civil Code (Act no. 10.406/02)[1].
In addition, the re may be tied to the strategic objectives, such as estate planning, organizing, tax, adapting to the dynamics of the global marketplace, and as a mechanism for crisis management of the enterprise.
When you Do it with a Corporate re-organization?
The need for corporate re-organization can emerge in a variety of settings, such as:
The types of Corporate restructuring
In the reorganization that can occur in a variety of ways, depending on the goals of the company and compliance with applicable laws. One of the major modes are:
Each type of reorganization requires a thorough assessment on the impacts of the tax, regulatory, and policy, to ensure that the changes meet the goals of the business, without compromising their strength.
How to Make a Corporate Reorganisation?
The implementation of a corporate re-organization, requires planning and execution of structured. The process can be carried out in the following manner:
Conclusion
A corporate re-organization can be a key element for the strengthening and growth of a company is to maximize its effectiveness, expand operations, or to ensure their survival in the face of financial challenges. When you adopt the right strategy, organizations are able to optimize its design, to reduce risk and strengthen their foothold in the market. However, in order for this process to be successful, it is important to have a detailed plan and the legal counsel of the company.
In this scenario, it is critical that business owners and managers to assess how frequently in the current structure of your business is the most efficient and strategic planning to achieve their goals. A corporate re-organization, is not just a tool to fix the issues, but it’s an opportunity to drive growth, mitigate risk and strengthen their competitiveness.
And have you ever thought about the future of your business? Its structure is in line with its plans for expansion, and security? Such a reorganization could be to optimize your results?
The answers to these questions can determine the success of your business in the next few years. To make strategic decisions, it is important to have expert advice, ensuring that each step is designed to safely, and in line with the best interests of the company.
References
BRAZIL. Law no. 6,404, of December 15, 1976. It’s about all the company’s Shares. Available at: http://www.planalto.gov.br/ccivil_03/leis/l6404compilada.htm. Available at: [accessed 02 march, in the year 2025.
BRAZIL. Law no. 10.406, de 10 de janeiro de 2002. On the Civil Code. Available at: http://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. Available at: [accessed 02 march, in the year 2025.
BRAZIL. Law no. 11.101, February 9, 2005. Regulating the recovery of court, out of court, and the bankruptcy of the manager and the company business. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2004-2006/2005/Lei/L11101.htm. Available at: [accessed 02 march, in the year 2025.
BRAZIL. Law no. 11,638, of December 28, 2007. Amending and repealing the provisions of Law no. 6.404/76 and introducing international accounting standards. Available at: http://www.planalto.gov.br/ccivil_03/_ato2007-2010/2007/lei/l11638.htm. Available at: [accessed 02 march, in the year 2025.
BRAZIL. Law no. 12.529, on November 30, 2011. The structure of the Brazilian System for the protection of Competition and on the prevention and suppression of violations against the economic order. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2011/Lei/L12529.htm. Available at: [accessed 02 march, in the year 2025.
BRAZIL. Law no. 13.105, de 16 de março de 2015. The code of Civil Procedure. Available at: http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2015/Lei/L13105.htm. Available at: [accessed 02 march, in the year 2025.
FIELD, Steve. A course in Business Law. 17. ed. Rio de Janeiro: Forense, 2018.
SANTA CRUZ, Robert Louis. In Corporate Law. 4. ed. Rio de Janeiro: Forense, 2020.
SHE Marcelo Barbosa. Guide to Business Law. 4. ed. São Paulo: Saraiva, 2022.
TOMAZETTE, Marlon. A course in Business Law. 8. ed. São Paulo: Atlas, 2017.
Of the VEIN, But it was Saved. In Corporate Law. 9. ed. São Paulo: Atlas, The Latest In 2018.
Barbara Rita Escapin – a Lawyer with a degree in Law from the faculty of Integrated River in the White Foundation members in São Paulo, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). The training on Executive Education/the Compliance by Fundação Getúlio Vargas (2022). A post-graduate degree in Corporate Law from Fundação Getúlio Vargas. She is the author of the articles. A lawyer and a Leader of the TM is Associated with it.
Helen Rodrigues de Souza – a Lawyer with a degree in Law from the Pontifical Catholic University of Campinas, sp, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). Training in Human Rights and Social, from the Portuguese Catholic University in Lisbon (2020). Training in Data Protection Officer by – Law, the General Data Protection by Renato Saraiva Education Complex (2021). College Education on the Topics of Advanced Private and Public Law from the University of Santiago of Compostela (in 2021). A Master’s degree in Business Admnistration in Tax Management from the University of São Paulo and in the Escola Superior de Agricultura ‘ Luiz de Queiroz (2022). Participation in the book “the Tax on agriculture”, by editora Lumen Juris (2023). The training in Litigation, Strategic, Getulio Vargas Foundation (2024). A post-graduate degree in Corporate Law from the Pontifical Catholic University of Rio Grande do Sul (2024). Attending a Latin-Legum Magister in Corporate Law and Capital markets, the Brazilian Institute of Capital markets in Sao Paulo. She is the author of the articles. A lawyer have Associated with it.
[1] In addition to the laws mentioned above, several of the rules governing the restructuring in Brazil. For example, the rules of CADE (conselho Administrativo de Defesa Econômica), Control of economic concentration, the CVM (Securities and exchange Commission) Regulation of public and private companies, and the Code of Civil Procedure and, in particular, on the part of virtue, and of the legal procedures that apply to the Law no. 11.638/07 – the Rules of financial accounting, and the convergence to international standards, the Law no. 11.101/05) (Law of the Judicial reorganization and Bankruptcy) Procedure for the restructuring of companies in crisis among the sources of legislation.
[2] Art. 228 of the Law (s. a. Law no. 6,404/76
[3] Art. 227 of the Act, S. A., Law no. 6,404/76
[4] Art. 229 of the Law (s. a. Law no. 6,404/76
[5] Art. 220 of the Act of the directors, and the arts. 1.113 to a total of 1,115 of the Code of Civil – Lei nº 10.406/02
The importance of a plan for jobs and wages in the corporate world, globalized world
PCS – Level jobs and Salaries, it is essential to improve the management to motivate the employees and to ensure the efficiency, attracting talent, and growing organization.
Introduction
The changes in the regional economy to the global increased the competition among the companies. With the rapid advancement of technology and the creation of a digital platform for the sales and merchandising, and service companies have begun to produce better and more efficiently.
Currently, the platforms, with the aim of social connection is the primary means of selling, such as Instagram, TikTok, and Facebook. How many times have you not found ‘dancinhas’, ‘trends’, and an investment in the professional profiles and sales information.
With globalization, companies need to constantly innovate to improve the quality and the price. In view of this, based on this new model, the market requires that firms behave in a way which is more flexible as you continue with the mere use of the conventional methods, it is not enough to keep up with the speed at which the market is evolving.
With the evolution of technology, it is possible to compare the prices and the quality of, any such product or service to any location in the world, after all, are those who have never went on youtube to check out a video of the exhibition, and beliefs about a particular product from a particular brand?
In light of this, companies need to revisit the processes, in order to facilitate them. This is because hardly any companies that will be able to keep up with the technological developments, while maintaining the internal processes are complex and very long. To this end, it is necessary to have the investment in quality workmanship and training in general.
The need for a reduction in cases, companies across sectors and different amounts of roles has become tough. In the contemporary view, the company should leave the internal process less cumbersome, and, therefore, to focus on the positions of the work is the most extensive on the basis of the need for the workforce with the knowledge that an aggregate.
The implementation of a plan for jobs and wages, it is not only to organize jobs and wages, and to predict the values of the fixed compensation, the compensation should be aligned with the strategies, developments, and the culture of the organization.
The concept of the plan and salary
PCS – Level jobs and Salaries, it is an essential tool in the management of people within organizations. It defines the structure of the job, the rules for compensation and opportunities for career advancement, while ensuring fairness and transparency in the relationship. The deployment of PCS, structured, has a direct impact on employee morale, retention, and sustained growth for the company.
According to Rio (2004), the management of the people you have to have focus, the assembler, because it is closely related to the other functions in the organization and a strategic vision that is to be embedded in the decision-making process in organizations. In addition, it is included in the company’s mission statement, the strategic planning in the goals that have been set, and the results are to be achieved.
The benefits of the plan and salary
The PCS that sets a clear hierarchy within the company, setting out the roles and responsibilities of each position. This allows you to run more efficiently, avoiding the overhead of working, and internal conflicts due to lack of definition of the functions.
One of the major challenges faced by the organizations is the management of the compensation in a way that is fair and competitive. The PCS prevent inequalities in wages unjustified and prevent any favoritism, and establishing criteria for salary increases and promotions.
Qualified professionals who are seeking companies that offer opportunities for growth. A plan that is well structured, attract talent and reduce the rate of employee turnover, while ensuring that the company is to retain experienced employees and partners.
When your employees know your expectations for their own professional development, they are likely to be more motivated and engaged. This results in higher productivity and a better overall performance of the company.
To set pay ranges and criteria are in line with the company, you can predict your costs and payroll, while avoiding increases in the wage random, and the financial impact of unexpected.
The structure of the plan and salary
Each post must be a detailed description, including core activities, skills, techniques, and behaviors that are required. It makes it easier for the allocation of responsibilities and the selection process.
The PCS must contain a chart that shows the relationship between the position and the flow of communication within the organization.
Your business can take different types of progression:
To ensure a competitive position in the market, it is essential to carry out research on wages, and to set pay ranges that are aligned with the reality of the industry.
Implementation of the action plan for jobs and wages,
The implementation of the PCS you should follow a structured planning:
Conclusion
The Salary Plan is an essential tool for the growth of the business by ensuring fairness, the motivation, and the predictability of financial need. The companies that are structured correctly, that the internal management have a greater capacity to attract talent, reduce turnover and maintain an organizational environment, healthy, and productive. Therefore, investing in a pc as well developed it is a distinct competitive advantage and a key step towards the sustainability and growth of the organization.
1 PAGE, Idalberto. Compensation, benefits, and labor relations: how to retain talent in the organization. 3. ed. São Paulo: Atlas, 2003.
2 BRIDGES, and the Major Years. The administration of the compensation. 11. ed. São Paulo: LTR, 2005.
3 in RIO de janeiro, José Márcio. The pay-for-skills: innovation in the management of the payroll. 2004. Dissertação (Mestrado) – Universidade Estadual de Campinas, Faculdade de Engenharia Mecânica, Atlanta, 2004.
4 MANAGEMENT salary: career and salary. 20th ed. São Paulo -, LTR -, 2021. Available at: https://books.google.com.br/books?hl=pt – BR&lr=&id=hUE6EAAAQBAJ&oi=fnd&pg=PA7&dq=plano+de+cargos+e+sal%C3%A1rios&ots=4GhxLhoR0x&sig=i8T0GnLEfmJ9-a7Nwc_EqiGXP-o&redir_esc=y#v=onepage&q&f=false. Available at: [accessed on march 19, 2024.
https://www.migalhas.com.br/depeso/426980/importancia-do-plano-de-cargo-e-salario-no-mundo-empresarial
A succession without a break!
Succession in family-owned companies as possible. But you can — and should — be avoided, it is on the break of the conflict, and the write-down.
In many cases, of the founder remains in the command, up to the limit of their capacity, putting off difficult conversations, and leaving it to heirs unprepared. What was the result? Corporate disputes, falls in revenue and up to the end of the business.
In this article, we are going to show you how a series of well planned project is the continuation — and not a single act. And, just as important, how it has to do with the structure, timing, and chat.
The idea is that the succession will take place in a natural way, in a future that is convenient, it is one of the biggest mistakes in the planning stage. You leave to go take care of it only when the founder is no longer capable of managing the business, is often a result of conflict and disorganization, which could culminate in a major crisis, and to-be for the end of the company. In addition to this, the lack of pre-planning lets your heirs are ill-prepared to make strategic and operational decisions. Companies that do not anticipate the succession, at the risk of losing their competitive edge, and even see your equity is diluted.
It is common to relate to planning for succession and only to the transfer of the goods to the alleged shielding property. However, the fact is that there is no real armor solutions. The value of this kind of organization, you are on your strategy to protect your business as a legacy, to ensure the continuity of the management of the business, and reduce the potential for conflict between the heirs.
The estate planning allows you to anticipate the decisions, which, if it were left up to the time of the succession, and may result in the court, they are to business, or to the dissolution of the society. To organize on the way to the stockholders and to the control of the company shall be transmitted to the owner to ensure greater stability and certainty for the future of the family and the business in accordance with his wishes, and that it is feasible to do so in the context of the family.
To this end, several tools may be used — such as for wills, the creation of a board to the inside of the company to decide on a specific topic, and their money with the provisions of specific agreements, the partners are still in the light of the reality of the family home, and the size of the company. The formation of a holding company which, in this context, it is one of the possible ways in which the center and arrange for the goods and the holding company, in promoting the governance of, and to facilitate the transition between the generations when properly structured, and is aligned with the goals and objectives of succession.
The most important thing is to understand that your estate planning is, first of all, as a measure of protection and durability. It’s not just to avoid conflicts, but also to promote legal certainty and clarity, organization, and balance sheet for a management model, which is aligned with the long-term vision of the family business, and the operation itself.
It is not uncommon for societies to cope with the conflicts that are related to the role of the heir to the managers and professionals. It is not always the heirs of the founding fathers have in the profile, and the preparation of or even interest in taking over the leadership of the business.
In this scenario, it is essential to clearly define the roles and responsibilities of each party, including the possibility of bringing in outside professionals in the management of the company.
Corporate governance exerts a key role in this process, and to align the interests of promoting the integration between the generations and to ensure the longevity of the organization. The creation of the consultative council or administrative procedures, with the participation of the members in the independent, for example, may be an effective strategy in order to balance tradition and innovation.
In addition to this, the use of the decision-making process is well-defined, and mechanisms to ensure transparency and contributes to the reduction of the inner conflict, and building an organizational culture oriented to the continuation and sustainability of the family business.
– There is an estate planning arranged?
The heirs are ready and able to take on strategic roles?
– There are protocols, and agreements between partners of well-defined?
Your articles are well-structured disputes in ownership, and inheritance?
The tax planning that is aligned with your estate planning?
The corporate governance committee is established and is in operation?
A succession without a break is a project that needs planning, communication, and design. When you take a strategic approach and is organised, it is possible to ensure that the change-of-hands is smooth, while preserving the heritage and legacy of the company for generations to come.
Sources:
RAMOS, Andre Luiz Santa Cruz. Business law: volume is only. 11. ed. São Paulo: Saraiva, 2022.
VELLOSO she is Pitten; GRISCI Carmen Ligia Iochins. Corporate governance, family business, in the process of inheritance: the view of the consultants, and for the families in business. Management Magazine, São Paulo, v. 22, n ° 1, p. 72-88, 2015. Available at: https://www.redalyc.org/articulo.oa?id=337232942008. Available at: [accessed 31 mar. The year 2025.
BRAZILIAN. Civil Code,. the Law nº 10.406, de 10 de janeiro de 2002. On the Civil Code,. the Official Gazette of the Union,section 1, Brasília, DF, brazil, p. 1, 11 jan. 2002. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/L10406.htm. Available at: [accessed 31 mar. The year 2025.
In BRAZIL. , Law no. 6,404, of December 15, 1976,. on the company’s Shares in. the Official Gazette of the Union,section 1, Brasília, DF, brazil, p. 1, 17 dec. 1976. Available at: https://www.planalto.gov.br/ccivil_03/leis/l6404consol.htm. Available at: [accessed 31 mar. The year 2025.
Barbara Rita Escapin – a Lawyer with a degree in Law from the faculty of Integrated River in the White Foundation members in São Paulo, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). The training on Executive Education/the Compliance by Fundação Getúlio Vargas (2022). A post-graduate degree in Corporate Law from Fundação Getúlio Vargas. She is the author of the articles. A lawyer and a Leader of the TM is Associated with it.
Carolina Cotrin de Oliveira, a Lawyer with a degree in Law from Pontifícia Universidade Católica de Campinas (PUCCAMP). A post-graduate degree in international Law from Universidade Presbiteriana Mackenzie, brazil. Registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2019). She is the author of the articles. A lawyer for the Department, the Advisory does have Associated with it.
Tidbits: https://www.migalhas.com.br/depeso/427683/sucessao-sem-ruptura
Settlement of the guard, as an instrument for the children’s safety
The settlement of the custody of the children, it is essential to ensure the stability of the emotional and legal entities, while protecting the rights of the child, and to fostering an environment that is family-friendly, healthy.
In the custody of the minor children is one of the topics that are most vulnerable and high-impact in-Law in the Family, because it is directly linked to the protection of human dignity, and the full development of the child and the adolescent. In the context of dissolution of the marriage is to be for a divorce, legal separation, or termination of the common law, the definition of the guard may not be merely an informal or unspoken. It is essential that the definition is clear, formal, and coated with legal validity, and ensuring the predictability, stability, and security for the child, and that is the most vulnerable part of this process.
In this scenario, the settlement of the guard, is emerging not only as a formal procedure, but like a real instrument for the protection of an integral, contributing to the formation of a family environment that was safe, emotionally healthy, and is legally protected.
The concept of the store on the Right to brazilian
In the brazilian legal system, the office of the keeper is governed in particular by the art. 1.583 Code Civil1, it offers two modes: the left line and in the joint custody. The first one assigns it to one of the parents or, in exceptional cases, to a third party of the charge exclusively to make decisions regarding the life of the child, such as issues related to health care, education, religious and moral training. The parent who does not have custody has the right of life and the duty to oversee the best interests of the child or young person.
In turn, joint custody is in the division the balanced the responsibilities of parenthood, regardless of the residence of the physics of the child. Both parents participate in the key decisions, and promoting co-responsibility and co-operation in the formation of the child. This method has been further reinforced by the law, 13.058/14, which established it as a rule, in the second paragraph of art. 1584 of the CPC2, even at the risk of loss or litigation, except for cases in which one of the parents is to express unwillingness on the left, or when there are no elements that indicate the likelihood of a risk of domestic violence or family member, this is your last chance has been included by the law in 14.713/23.
It is interesting to note that the guard is not to be confused with the physical possession of the child. The concept encompasses not just the living of daily life, but in the exercise of the power of the family in its entirety. You should, therefore, be seen as a legal instrument which is designed for the protection of the rights of the child, and your app will always comply with the principle of the best interests of the minor, as outlined in the Constitution, the Statute of Children and Adolescents (law 8.069/19903) and by the international treaties ratified by Brazil, such as the un Convention on the Rights of the Child, united nations.
The proper definition of the left is, therefore, a central element in the structure of the parent-child relationships, post-dissolution of the union of husband and wife, and it is essential to ensure the stability of the emotional, the physical and legal status of the child, in accordance with the fundamental rights to which they are provided.
The function is protective of the settlement on the left
The settlement of the care and custody of a minor child, far from being a mere act of doing this, it is like a veritable instrument for the comprehensive protection of children and adolescents. When you sign up for a half of a court judgment or approval of the agreement, the duties and the responsibilities of parenting, it can create an atmosphere of predictability, security and stability in the law that is fundamental to the development of physical, mental, emotional, and psychological-of the child.
In the context of a separation, or a dissolution of the union as husband and wife, the absence of a legal definition of custody can generate the recurring conflicts between the parents has a negative impact on the daily routines of a child and commit to your health, mental, and emotional. Situations, such as making one-sided, sharp changes in the application, the absence of objective criteria, the division of responsibilities, and episodes of alienation, parental, are typical examples of the harm resulting from inaction and the regulation of the police.
In this sense, the closing of the guard is not the only means of protection for the children, but it is a duty of care on the part of the parents and the State. It ensures that the enforcement of the fundamental rights set out in art. 227 of the Constitution of Federal4, which is that it is the duty of the family, of society and of the State to ensure children and adolescents, with absolute priority, the right to life, to health, to education, right to dignity, respect, freedom and family. To the left of the duly established, it’s also possible that those rights are to be exercised in a manner independent of their parents, to respect the ties of friendship, and ensuring the stability of family relationships.
In addition, the left settled favor of the exercise of the power of family-of-way, balanced diet, and avoiding abuses, and promoting the coparentalidade in charge. It allows, for example, access to public and private services in a way that facilitated the implementation of administrative decisions and the responsibility in the case of a breach of the duties of parenting. It is as essential to the protection of the child from the effects of the breakdown of cohabitation of husband and wife, thus preserving their right to a continuation of the ties of friendship, and life that is in harmony with both your parents.
The consequences of the absence of a settlement on the left
In the absence of a settlement official custody, either by court order or by agreement with the approved, you commit directly to the stability and protection of the child or young person. This is the default, which undermines the exercise of the power of family, and it can have serious consequences for the legal, practical and emotional, for both the minor and the parents.
In the legal aspect, and the lack of definition on the left makes it more difficult for the performance of acts of civil life, that it require verification of parental authority, such as school enrollment, medical care, or for inclusion in a health insurance plan, the issuance of passports, visas, obtaining official documents and access to social security benefits. In many cases, the institutions, both public and private, require proof of the guard to allow for such a procedure, and in the absence of such a document cannot be or is it slows down the response to the needs of the child.
In addition to this, the markets will be promoted recurring conflicts between the parents and, when the voltage of the family, as well as affecting the mental state of the child. In the absence of a clear set of rules about intimacy, decision making and responsibilities of parenting tends to lead to constant disputes, which exposes the child to an environment of insecurity, emotional, and psychological.
The other risk, it is important for the occurrence of alienation, parental, as provided for in the Law 12.318/105, which is in the handling of the child or teen to keep her away from the other parent. When the guard is not defined, it becomes more and more difficult to identify, and deter this type of conduct, all of which can seriously compromise the bond of family, and the emotional development of the child.
In the end, the lack of a settlement that prevents your legal responsibilities in case of an omission, or negligence on the part of one of the parents, making it more difficult for measures such as the revision of the food, and requests for modification of custody, the regulation of on-site visits or application of the protective measures.
In this scenario, the settlement of the guard, it is essential to not only act as an organization the family, but as a true measure of the protection of the child. To formalize his / her parental duties, and to ensure the rights of the child, to promote the peace of the family relationship, to avoid the criminalization of unnecessary, giving the integral protection of children, as required by brazilian law.
Concluding remarks and perspectives for the future
The settlement of the guard must be understood as fundamental to the protection of children’s education, and not just as an act of doing this. To formalize the responsibilities of parenting, it ensures an environment of stability, predictability, and caring, and contributing to the emotional well-being, and legal problems of the child.
In addition to the prevention of conflicts and to ensure the rights of the guard, is legally defined fulfills the constitutional principles of the dignity of the human person, and the priority of the rights of the child and the adolescent.
For the future, it is essential that the Judiciary to act with awareness, and that policies to encourage responsible parenthood, family mediation, and with the support of their families. Commit to a culture of left theory, is to invest in the education of the links are healthy and full development of children and adolescents, which is in line with the values of a Democratic State of Law.
1 Art. 1.583. On the left is a unilateral or shared. (As amended by the Law no. 11.698, 2008).
2 Art. 1.584. On the left, unilateral or shared may be able to be: # 2, When there is an agreement between the mother and the father, and of the custody of the child, with both parents, and able to wield the power of the family, it will be applied to the joint custody unless one of the parents to tell the magistrate that you do not want custody of the child or teen or when you have elements that indicate the likelihood of a risk of domestic violence or family member.
3 of the Law no. 8.069/1990:
Art. 1 of This Act contains provisions on the comprehensive protection of the child and the adolescent.
Art. 3 in The child and teenager enjoy all the fundamental rights inherent in the human person, without prejudice to the full protection of this Law is to ensure to them by the act or by any other means, for all the opportunities and facilities in order to facilitate the development of the physical, the mental, the moral, the spiritual, and the social conditions of freedom and dignity.
Ii. All the rights provided for in this Act shall be applied to children and adolescents, without discrimination on grounds of birth, family status, age, sex, race, religion, ethnicity or color, religion or belief, disability, personal development, e-learning, economic status, social environment, region, and place of residence or the condition that distinguishes individuals, families, and the community in which they live.
4 Art. 227. It is the duty of the family, of society and of the State to protect the child, the adolescent and the young man, with absolute priority, the right to life, to health, to food, to education, leisure, professional training, culture, dignity, respect, freedom and family and community, in addition to putting them safe from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.
5 of the Law nº 12.318/2010:
Art. 2, it is Considered an act of alienation, parental interference in the psychological preparation of the child or adolescent is promoted or triggered by one of the parents, the grandparents, or that you have a child or young person under the authority, control or supervision to which repudie a parent, or that it may cause harm to the establishment and maintenance of links with the east.
https://www.migalhas.com.br/depeso/428078/regularizacao-da-guarda-como-instrumento-de-seguranca-infantil
Corporate restructuring, as part of a strategy of expansion: when changing the structure of your society, that is, the best way to grow
To grow in today’s market is a challenge that requires a lot more good ideas and products. To achieve the expansion of the security, it is essential that your company has a corporate structure that is appropriate to their goals. In this scenario, the restructuring itself as a strategic tool, able to prepare the business for a new development cycle, with more certainty and clarity in decision-making.
What is corporate restructuring?
Corporate restructuring is a set of legal operations provided for in the brazilian corporate law in relation to corporations in business with the objective to modify the structure, composition and functioning. They are legal documents that allow for the adaptation of companies to the economic reality, the regulatory environment, or the new year.
The main types of rearrangement are:
These operations must be carried out in accordance with the legal procedures, including the resolution of the shareholders, the preparation of the acts of the company are certain to as a protocol, rationale, and contract modifications) and the registry at the relevant bodies.
More than just a formal step, a corporate re-organization, should be understood as part of a comprehensive medium-and long-term, and have a direct impact on the governance, management, and positioning of the company in the market.
The establishment of holding companies as the engine of economic organization.
It is possible to restructure as an alternative of recurrent, is the creation of holding companies — companies whose primary activity is the participation in the equity of other companies. The holdings can be used for a variety of purposes, such as:
Depending on their composition and purpose, the holding company may be pure when it is devoted solely to the company’s interest) or in combination (for example, when, in addition, carries out activity in operating assets). The constitution has to be in line with the reality, and the objective of the company’s or the group’s economic, always taking into account the limits of the law, and the transparency of its operations.
When a corporate re-organization can be beneficial?
Companies on growth-you can adopt more complex structures, such as a subsidiary, or a subsidiary, in order to target the areas of the business, to distribute the responsibilities, and to allow for greater administrative efficiency.
The clarity of the structure is the key factor to attract investors and new business partners. In the reorganization, it can ease to entry to the capital, and to provide more legal certainty to the parties involved.
For societies, families, to re-order allows you to organize the succession of the order, with a clear definition of roles and division of fees and the rules of governance, and avoiding future conflict between his heirs and thus ensuring the longevity of your business.
Depending on the model of corporate governance, and the tax system is adopted, the re may result in a model that is best suited to the economic reality of the company, subject to compliance with the principles of legality, good faith and in the substance of economic transactions.
Care is essential to promote the re-organisation.
The change in the corporate structure should be carried out with the planning and follow-up expert. Some of the critical points include the following:
It is important that the reorganization be the basis of technical, economic purpose, valid and in accordance with the legislation in force and to avoid man-made structures, or focused solely on the economics of taxation.
Corporate restructuring is a strategy that’s smart for companies that want to grow with structure and predictability. When well designed, it makes it possible to adjust the business model to the realities of the business to mitigate risk and facilitate the succession, and to increase access to opportunities in the market.
This is a strategic decision that must be carried out with the support of a qualified service technician, from the point of view of the rule of law, transparency, and in the collective interest of the membership. In a scenario that is increasingly complex, focused, this is the best way to ensure a strong future for a sustainable society.
Barbara Rita Escapin – a Lawyer with a degree in Law from the faculty of Integrated River in the White Foundation members in São Paulo, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). The training on Executive Education/the Compliance by Fundação Getúlio Vargas (2022). A post-graduate degree in Corporate Law from Fundação Getúlio Vargas. She is the author of the articles. A lawyer and a Leader of the TM is Associated with it.
Carolina Cotrin de Oliveira, a Lawyer with a degree in Law from Pontifícia Universidade Católica de Campinas (PUCCAMP). A post-graduate degree in international Law from Universidade Presbiteriana Mackenzie, brazil. Registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2019). She is the author of the articles. A lawyer for the Department, the Advisory does have Associated with it.
Mark the position on the Right Trademark of the brazilian
Initially, it is noted that in the current context of the fierce competitive market, building a visual identity is solid, it has become essential for the differentiation of the products and the loyalty of our customers. In this scenario, the aesthetic and symbolic of the consumer goods began to play a strategic role in the practice of branding, requiring the legal protection of proportion to their importance.
In response to these developments the legal framework of the brazilian went on to acknowledge, express, the registration of the trademark for the position recognizing it as a form of stand-alone sign. This award aligns with the Brazilian guidelines have been consolidated in a foreign legal systems, where a specific position of a visual element on the product, it is treated as an asset of the industrial property subject of the rooms.
In response to these developments the legal framework of the brazilian went on to acknowledge, express, the registration of the mark on the positionand recognition as a form of stand-alone sign. This award aligns with the Brazilian guidelines have been consolidated in a foreign legal systems, where a specific position of a visual element on the product, it is treated as an asset of the industrial property subject of the rooms.
On the face of it, the position and represents, therefore, a new legal norm is relevant in the field of intellectual property, and to allow for the protection of the visual features that are applied in a certain place on the product, even though they do not change their form or function, you give them a symbolic value, distinctive and appealing in the market. This is a response to the legal complexity of the design of a contemporary, and in the constant search for the differentiation of the business environment.
The concept and the elements characteristic
From the perspective of the Right, trade mark, at the mark position can be regarded as a distinctive sign applied to a specific, fixed and unchanging, in a certain part of the physical medium, which is often the product itself or its packaging. Unlike most brands, names, figures or three-dimensional, and that it protects is not the signal, in and of itself, but the layout is peculiar, and is not functional in the context of the object.
In other words, the protection provided by the brand’s position is based on the combination of the strategic location of the signal, from this position, it possesses a distinctive character, and does not perform the role of technical or utilitarian. On the distinctiveness, in this case, it is apparent to the perception of the consumers with this setting to a source, the business of the product, turning the position of the element symbol.
In this respect, it is well-known for some examples of paradigmatic in the international arena, such as the sole of red in the shoes of the brand, christian Louboutin, which is applied exclusively in the lower part of the shoe; and the three stripes on the sides of the shoes and Adidas, whose repetition in a standardized and has become the visual identity of the brand name, or the sewn-on bow in the back pockets of your jeans-Levi’ss, an element which is recognized and is directly related to the origin of the product. For such signals, even in isolation, simple or a little dark theme, acquired distinctiveness, context-from its mounting in a location-invariant, and they are able to identify the product in the market and to differentiate your brand ahead of the competition.
As permitted by law and the requirements of the Brazilian
The consolidation of the regulation of the brand’s position in the brazilian legal system was made by means of the decree-INPI/PR 37/211, which entered into force on 13/9/21. The law represented a significant step forward in recognizing explicitly that the category of the brand name as a possible candidate for the record, setting forth the criteria that must be met at the time of the analysis, the technique of the application.
In accordance with the ordinance, to the registrability of the mark, the position requires that, on a cumulative basis, that is, the signal is applied to a particular position and to the particular product, the location of which does not possess the function of a technical or utilitarian, and it is, therefore, not related to any of the functional element. In addition, it is essential that the resulting configuration possesses a distinctive character long enough to allow the consumer to identify the origin of the business of the product by looking at the position of the signal.
The technical assessment carried out by the INPI (National Institute of Industrial Property demand is not only to give a detailed description of the mark and its application, but also for the presentation of graphical presentation of appropriate supporting documents showing the exact location of the signal. To do so, it is a requirement that a portion of the product to which the signal is inserted is highlighted with solid lines or shaded areas, as in the other parts of the object should be represented with dashed lines, in order to delineate clearly the scope of the protection sought.
This is a graphical representation fulfills a fundamental role, since it allows the examiner to assess with precision whether the brand name is associated with the position’s distinctive and unchanging, and in compliance with the parameters of the law. It is, therefore, a crucial step to ensure that your order is not to be confused with the marks, figures, or three-dimensional, and looked forward to the very nature of a brand’s position as an engine for visual differentiation in the market.
The difference between a trademark and brand name of three-dimensional
Even though the brand name and the brand name of three-dimensional to share the fact that they fit between the so-called signs of non-standard nature of the legal and protected elements differ substantially from one another in the context of the Right Parties. This distinction is essential in order to avoid overlaps, improper protection, and to delineate properly the subject matter of the request for registration with the INPI (National Institute of Industrial Property rights.
The brand is three-dimensional with respect to the shape of the plastic, or the volume of a product or its packaging, to the extent that this order, all by itself, is a distinctive feature and is not directly related to the technical requirements and functional. The protection is based on the set of qualities that can be viewed by the consumer as an element of the identifier of the source of business value. A classic example of this is in the shape of the bottle of the Coca-Cola company, of which the outline is acknowledged throughout the world.
On the other hand, is the brand name of the position, it does not protect the whole of the products, but the specific location of a certain way about it. The claim, therefore, is the use of a visual element such as color, symbol, drawing, or painting in the position of the invariant and non-functional, whose repetition, and the association constant of the brand name has become distinctive in the eyes of the consumer. The protection takes place on the grounds of the uniqueness of the position and the shape of the object in and of itself.
In this context, the position of the distinction of his character is essentially a two-dimensional, which is linked to the mounting space of the signal, while the three-dimensionality concerns the very structure of the body of the product. The distinction is purely theoretical, it has no practical impact at the time of submission of the request, the evidence of distinctiveness, and the determination of the scope of the rights conferred on it.
Thus, to understand the boundaries between these two categories, it is essential to not only have a correct legal classification of the sign, but it’s also a strategy that marcária effective, especially in the areas in which the design and appearance of the products, exert a decisive role in the choice of the customer.
Procedures for registration
In the process of registering a trademark in place in Brazil following the procedures generally applicable to the claims of a trademark with the INPI (Instituto Nacional da propriedade Industrial), but with the specific requirements that are related to the nature of the peculiar to this type of sign. For the correct compliance with this requirement is critical to the acceptance of the order; and the consolidation of the legal protection that you want.
First, the applicant must indicate in the application form to e – mode ‘trademark’position, distinguishing it from other categories, such as the word mark, figurative, mixed -, or three-dimensional. This initial training is critical, as it guides you through the technical examination of the mark in the light of the criteria of this kind.
In addition to this, the application must contain a graphical representation of the need of the product, showing clearly the exact location of the signal to be claimed. In accordance with the guidelines set forth by the PTO, in this representation, we must point out the area in which the mark is applied by means of solid lines or shaded areas, while the rest of the parts of the product must be shown with dotted lines, so as to avoid any ambiguity as to the object of protection. That taken care of the technical it aims to delimit the extent of the right of parties posed, making it clear that it’s not a matter of protection in the form of the product, however, the position of the signal on it.
Also, it is necessary to present a formal description in-depth, in which the applicant is to indicate the type of signal, its location, its distinctive features, and the way in which such a configuration, it is perceived by consumers as an indication of the origin of the business. If the signal does not own distinctiveness that is intrinsic, it is recommended that if the evidence of distinctiveness acquired (secondary meaning), in particular by means of statements, the use of a continuous and a recognized brand name in that setting.
During the technical examination, the pto may be able to formulate the requirements of the formal or substantive, including that related to the functionality of the signal is, for lack of distinctiveness, or the use of a position in the segment of the market that is involved. In such cases, it is the responsibility of the applicant to submit the answers-informed, and, if necessary, supporting documents, which explain the distinctive character of the mark in the position.
In the end, it is important to note that, just as in other types of marks, the registration of the trademark for the position, once it is granted, it gives the holder the right to the exclusive use in the whole of the national territory, for an initial term of ten years, renewable for successive periods of the same duration. It is, therefore, an important instrument for the consolidation of intangible assets and fixed assets and for the preservation of the visual identity of the brand in the face of the market.
Advantage and strategic conclusion
The possibility of the registration of the mark position, it represents a significant advance in the brazilian system for the protection of marcária, in particular, by expanding the scope of protection of distinctive signs, and adapt the organisation to the new realities of today’s marketplace, which is strongly based on the aesthetics, the symbolism and the visual experience for the customer.
From a strategic point of view, the position helps to solidify the visual elements that are as unique as the assets of intellectual property, ensuring that the holder has the exclusivity on the settings that you are not limited to, name, or logo, but they are incorporated in to the imagination of the consumer, by the means of the repetition of a constant, and the familiarity of the senses. This exclusive reinforce your branding, and contributes to the loyalty of the clients and puts the brand in a prominent location in front of the competition, especially in sectors that are stretched to the limit, or with products that are visually consistent.
In addition to this, the registration of a trademark can be a barrier to effective anti-unfair competition, and dilution of marcária, to protect the visual settings that could be easily settled by a third party is not permitted. Recognizing the value of the elements as seemingly simple as sewing a song, a color that’s applied in a specific place in the system of trade mark application shall concentrate on a more expansive wealth of design and visual communication in the business strategy.
It can be concluded, therefore, that it is the mark of a position to not only enrich the legal framework of intellectual property rights, but it also offers the companies with a powerful tool to protect your identity, marketing. Their use, however, demand planning, a legal notice, a clear definition of the brand strategy, and technical precision in the preparation of the application for registration. In an environment of increasing the valuation of intangible assets, and this is a feature that deserves special attention from the part of the operators, on the right, and the managers of the business, focused on innovation and brand-building strong and long-lasting.
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1 PORT_INPI_PR_37_2021.pdf
https://www.migalhas.com.br/depeso/428990/a-marca-de-posicao-no-direito-marcario-brasileiro
Divorce, out-of-court Solutions legal dissolution of a consensus in the wedding
The termination of a marriage, although it is marked by a personal decision, delicate, could be legally enforceable simple, secure, and faster, when carried out in an integrated way. The brazilian legal framework allows for the divorce is agreed to be paid directly to the registry office, without the intervention of the Judiciary, provided that under certain legal requirements. It is in the divorce, out-of-court, the expression moderna autonomy in the private and in the desjudicialização of civil affairs.
The consolidation of the divorce, out-of-court represents a significant development in the legal treatment of marital relationships. When you recognize the validity of the will, in conjunction with their spouses, and to allow for the dissolution of the bond, without the need for criminalization, the system focuses on solutions, and optimizes the resources in the public and promote greater efficiency in the provision of jurisdictional arrangements. It’s an alternative that combines the simplicity and orderly procedure in the interests of legal certainty, ensuring that the parties to a less stressful and more consistent with the social realities of contemporary life.
The legal requirements for the completion of the divorce, out-of-court
The divorce court was inducted into the brazilian legal framework for the law, 11.441/07, which was later amended and consolidated by the CPC/15, which has been incorporated into this content, in art. 7331, which authorized the drafting of a deed of divorce, legal separation, and the share of goods in consensual sexual acts directly at the offices of the notes.
So what is the procedure for a divorce out of court may be made, it is necessary to comply with a few requirements:
In addition to these requirements, the documentation must be complete and up to date: the marriage certificate, personal document, the birth certificate of the goods, the antenupcial (if any), and the evidence relating to the shares.
In the event that any of these requirements are not met, then the notary shall refuse to execute the write and direct the parties to look to the Legal system. On the other hand, when all the requirements are met, the public deed of divorce takes effect immediately, and can be used for any purposes that are legal registration of the marriage certificate, update records, balance sheet, and changes to the land registry before the administration of public and private sector.
The procedure in the office of the notes
The procedure of divorce, out-of-court begins with the selection of Tabelionato de Notas, which will draw up the deed, which shall formalise termination of a marriage. The law does not require that the registrar’s office is located at the place of residence of the persons, or the place where it was celebrated the marriage, which offers the freedom of choice of the parties. You, as a rule, by the registry office, more reputable, more agile, or that you have the digital services, especially in the major cities and urban areas.
To begin, the husband – for herself, or by his attorney, shall schedule a service on the registrar’s office and submit all the required documentation. This would include a marriage certificate update (issued within the last 90 days, personal identification documents, the antenupcial (if there is one), the issue of certificates of the goods are to be shared (such as the registration of real estate, the documents of the vehicle, and financial statements), in addition to the proof-of-discharge in respect of the tax, if applicable. In the presence of a lawyer is mandatory, and their qualifications will be included in the write – you can act for both parties to act separately.
With the documents in hand, and all of the terms agreed upon, it will be written on the draft of the deed. It shall contain provisions to the clear and detailed, the desire to dissolve the marriage in the form of a share of the property, the decision on whether to maintain or return the name of the single, as well as the definition of a liability for costs, and applicable taxes. If the spouses choose not to share right away, that intention must be specifically set forth in the deed, in order to avoid allegations of omission or invalidity of the future.
The notary public shall exercise the function of control, the formal and the rule of law, making sure that the legal requirements have been met and that there are no elements that require the intervention of a judicial – like questions about the ability of the parties to the absence of a consensus, or an irregularity in the documents. The professional will also be able to clarify the doubts of the parties, even though its operation does not replace the advice of an attorney.
To complete the conference, and the book is prepared and signed by both spouses and their lawyers and, where necessary, on the website.
The deed of divorce has the effectiveness of the immediate, but the effects on third parties to rely on the proper registration at the Civil Registry Office at the seat of marriage must be provided at the initiative of the partners. In addition to this, when there is a share of a property, it is essential for the registration under the registration numbers of the buildings on the property, the transfer of ownership of the vehicle along with the bodies of the road and, where appropriate, the notice to the banks, financial institutions, the irs, and other government entities, and private, depending on the nature of the goods.
The time limit for the completion of the procedure depends on the complexity of the case, and the completeness of the documentation provided, but, in general, the deed may be executed in two to five business days. In situations that are more complex, as it shares with the goods of high value or multiple properties, there may be a need for proceedings supplementary to and including the guidance for fiscal development due when, ITCMD, or the need for amendments sheet prior.
The costs include the fees cartorários set out in the tables of state, which varies depending on the value of the assets are shared, and the number of pages in the act, and in addition to that of the attorney(s) attorney(s) and a possible tax on the transfer of assets. In some cases, as the shares are uneven or streams-cost, there may be a requirement for pre-payment of taxes prior to the drafting.
In the end, it’s worth noting that, in spite of the informal sector on the environment, cartorário, the process requires attention to technique. The work in a diligent attorney is crucial in order to ensure the validity of the act is to avoid the clauses of poorly-written, to predict consequences of the balance sheet and preserve the rights of the future. Divorce court is an effective path, but it takes planning, strategy, and legal guardian.
The advantages of divorce, out-of-court
In the divorce, out-of-court has consolidated its position as an alternative to the moderna and more efficient on the court, especially in the context of the consensus and the absence of any such dispute. Advantages resulting from the combination of the rapid process, the reduction of the formalism and the full force of the legal act, and in compliance with the requirements of the law.
The main advantage is the speed at which the procedure. Unlike the litigation process, which can continue for months or years, even in cases of consensual sexual acts, the divorce at a notary’s office, can be done in just a few days, provided that the documentation is complete, and the terms to be set out between the parties.
In another aspect, it is important for a lot of time and money. Did not need to pleadings, hearings, and judicial intervention, and significantly reduces the cost of the procedure was limited to the fees cartorários, to, reasonable attorneys ‘ fees, and, eventually, for the tax to be charged on the share of the estate. This streamlined structure makes it more accessible for a lot of couples, with no compromise on the safety and security of law.
From a legal point of view, the safety and effectiveness of a public instrument shall be fully acknowledged. In the scripture, it has the nature of a writ of execution out-of-court, it has the same effect as a court order, and is for all lawful purposes, including the annotations, record, and changes to the registry. In addition to this, the act is carried out by a notary public, who serves as a guarantee of the legality of charge.
All in all, the divorce, out-of-court constitutes a lighter, more efficient and humane management of the end of the marriage. To allow the parties to exercise their autonomy, with the support of qualified legal, reduce litigation, to promote access to the legal system and the value of the autocomposição as a legitimate tool of the reorganization of social life.
Final thoughts
The divorce court is a step forward a normative and institutional framework to allow for the end of the marriage, agreed to give up with speed, security and autonomy of its parts.
In spite of the simplicity of the procedure, and the presence of a lawyer, it is essential to ensure that all legal requirements are being adequately met, while ensuring legal certainty, the validity of the act and the prevention of legal disputes in the future.
It is, therefore, an alternative, moderna, and effective, which combines the technique of the legal, self-sufficiency, private, and respect for the dignity of all parties involved, in the end, a relationship that is marital.
________
1 Art. 733. The divorce is agreed, the separation of consensus, and the termination agreement was reached on the common-law marriage, when you don’t have the child, or the child is unable, it may be carried out by means of a public deed, irrespective of the type-approval of a court.
https://www.migalhas.com.br/depeso/429806/divorcio-extrajudicial-eficiencia-na-dissolucao-conjunta-do-casamento
ESTATE PLANNING AND INHERITANCE: THE IMPORTANCE OF THE WILL, AND THE DONATION OF GOODS
The estate planning is a way for you to organize and define it as the wealth of a person is to be distributed after your death. Although death is an inevitable reality, it is how we deal with it, especially in relation to the transmission of property, and rights, and can be planned in advance and carefully.
This plan aims to ensure that the order and the fulfillment of the will of the deceased, while also protecting the rights of the heirs, and of avoiding conflicts in the family, and are generally surrounded by the two main tools: the gift of life and for the last will and testament.
In Brazil, the Civil Code establishes the rules that establish the way in which heritage can be dealt with, particularly in relation to the protection of the heirs are required.
In this context, the brazilian legislation to create a balance between the freedom of the testator (the one who makes the will), and for the protection of the rights of the heirs. Therefore, it is essential to understand the ways of the donation, testament and new testament, and the legal implications of giving in to life as a legitimate part of the inheritance, and to the limitations imposed by the Civil Code.
In this article, we will cover the main concepts related to the covenant and grant, to explore the different aspects of these methods and how they operate in the context of estate planning.
Gift of life
The gift of life this is just one of the ways of the transfer of property to another person-even during the lifetime of the donor. Other than the will, and that happens after death, and the gift of life allows you, the donor will have the opportunity to see the satisfaction of your desires, and it is still alive.
This is the kind of gift can be used as a means of planning for the succession, allowing the stockholders to be streamed in and out to avoid the risk of conflict at the time of his death.
Should be noted that if the goods are donated to a property, the validity of the free will that requires the drafting of the deed (art. 108, DC and to register on the registration of immovable property (art. 1.245), as it is, without a record, the gift does not have any effect in relation to third parties.
In addition to this, the gift of life is to be subject to the specific rules, especially when it comes to a legitimate part of the estate, which must be complied with. That is, the donor may not donate goods, which, in the case of a death, is committed to the rights of the heirs are required.
Testament
The testament it’s a way for the declaration of the will made by a person who is to be executed after his death. It is one of the main instruments of the Law of Succession, being regulated by the articles of 1.857 at 1.990 of the brazilian Civil Code. It is, therefore, an act of unilateral, personal, revocable, the effectiveness of which does, after the death of the testator.
While it does offer a certain freedom, the will, you also need to follow all the legal regulations, in particular in relation to some legitimate, so that the failure will only be able to indicate freely to those who will get your assets out of the part, which corresponds to 50% of the total stockholders ‘ equity.
This means that you, the tester, you are free to choose the destination of up to 50 per cent of your goods, the called party is available.
There are many different types, will set out in the Civil Code, including the public, in the savannah and in particular, with the specific requirement for each and every one. In general, we can see that in the states
The audience is drawn up in the Tabelionato de Notas, in the presence of a notary public and two witnesses, one being automatically registered in the CENSEC the Central Law-of-Service and Electronic Log;
Cerrado’, is written by the testator, or by a third party, closed, sealed, and delivered to a notary public in the presence of two witnesses in order for it to be saved. The will remain a secret, and it only has of its content is revealed after the child’s death, and it can be open and read, in the presence of the court;
Especially it is written by the testator, and looked at the three witnesses, and then the death must be confirmed in court, to the effect (art. 1.876, civil code).
There are also special arrangements of the will to war or threat of war, or travel to you, such as maritime, aviation, or military.
In the testament, you can include a variety of provisions, including the choice of successors, the appointment of an executor, the appointment of an executor, and the provisions of the nature of non-interest.
For example, it is possible to provide for the authorisation of access to family members or attorneys of the medical records of the deceased, as well as how you can customize your digital legacy by naming a person you trust to unlock the phone, manage your email accounts, social networks, or request that we delete the content is in compliance with the LGPD, and the Civil rights Framework for the Internet.
Although you do not have the financial straight forward, these provisions protect the dignity, privacy, and the memory of the deceased, part of the estate planning in the digital reality art.
In all cases, the will may be revoked or changed at any time; provided, however, that compliance with the legal requirements.
But in the end, the one who is standing?
The standing is the share of 50% of the estate, which, by virtue of a law, it must be assigned to heirs, as necessary, to include the following: your spouse / partner (or partners), the ancestors (parents, grandparents, and all the descendants (children, grandchildren).
In respect of the spouse, it is important to point out that, it will not be the heir to need this if you are married, under the scheme, which will allow entitlement to inheritance, or concur with the descendants, or ancestors (art. 1.829, civil code). In the systems of separation, absolute and final in the aquestos, for example, the spouse’s participation may vary so it is important to analyse a case by case basis. In addition, as a general rule, ancestors (parents, grandparents) will only inherit if there are no top-down (art. 1.829, and (II).
In this case, the portion of the estate on the legitimate, it may not be laid freely by the testator, that is, it does not deserdar’ for these heirs, as they would like.
For a tester who wants to give away his assets, free-form, he may have called the ‘available’ out of the inheritance, which is the part that is left over after you have adjusted the part of a legitimate one.
The limits of the Donations will and Testament
So much for the gift of life and the will must comply with the limit for the standing. If the donation exceeds the value of the heirs may demand the return of the goods to be donated to compensation at the time of participation.
In addition to this, when a donation is made to an heir of life; it can be treated as an advance to the legitimate one. This means that the amount of some good or donated will be considered at the time of the estimate of the share of each heir in the inventory.
It is worth saying that only the offspring that are required for the collection (art. 2.002, civil code). The donations you make to your spouse, domestic partner, or other third parties do not form part of this account is, unless the donor has otherwise stated.
There are, however, the ability of the donor to include a provision for the waiver of the collection, which states that one as well, donated will not be counted as part of the estate, but also as an individual benefit of the heirs. Such a clause can be included either at the time of the donation, as it will, as long as you respect the limit on the amount available.
Some of the other terms that it can be placed both in giving and in the last wills and testaments, which include:
Incommunicability-Prevent the well-donated/tested, it is considered to be a part of the community property in a marriage to the trustee/beneficiary,
amounts that cannot be attached: it Ensures that the property donated by/tested-will not be seized in the event of a debt, the trustee/beneficiary,
Inalienability: which Restricts the sale or transfer of the well, during the lifetime of the donee/beneficiary
‘s Enjoyment: Grants from the donor/testator or by another person, for the right of use of the donated good/tested for as long as I live;
Fallback: Allows the donor to determine that the property to automatically return to its stockholders, or to the person indicated above, if the grantee dies before him, art. 547 CC). In the testaments, there is a reversal, as the heir set up to die before the testator, then the provision shall lapse, unless the testator has provided for replacement of the ordinary in terms of art. 1.947, and the s. s., of the Civil Code.
Other limitations may be imposed by the donor/testator, as to the conditions or arrangements on the use of the property. However, these provisions have not infringe on the legitimate part, or the provisions on the rights of the heirs are required.
Conclusion
To donate goods, or to draw up a will is legitimate ways to decide on the fate of your very own property. However, it is important to understand that there are rules that must be followed, especially with regard to the protection of the heirs are required.
The use of gifts in life, and it will, it is possible to establish conditions that guarantee the continuity of the goods and to maintain the legacy of the family. The estate planning appropriate to make sure that your goods are to be transmitted, in accordance with his will, and helps to prevent conflict, reduce costs and, at the same time, with respect to the rights of the heirs.
However, it is essential to remember that so much of the gift of life and the transmission will be subject to the ITCMD, state tax, whose tax rates and bands of the exemption varies greatly in accordance with local laws and regulations. To assess in advance the impact of such a tax, and, where applicable, schedule of donations, over time, can mean the economy is relevant and to enhance the effectiveness of the plan.
Therefore, the dimensions of social, economic, family, and the tax should be assessed in an integrated manner, preferably with the advice of the legal and accounting expertise.
Reference (s):
BRAZIL. Lei nº 10.406, de 10, jan. 2002. On the Civil Code. The Official journal of the european Union: Section 1 Brasília, DF, brazil, on 11 jan. 2002. Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm. Available at: [accessed 13 jun. The year 2025.
BRAZIL. Law no. 12.965, de 23 apr. 2014. It establishes the principles, guarantees, rights and obligations for the use of the Internet in Brazil’s Marco Civil da Internet). The Official journal of the european Union: Section 1 Brasília, DF, brazil, the 24-oct. 2014. Available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm. Available at: [accessed 13 jun. The year 2025.
BRAZIL. Lei nº 13.709, the 14th of August. 2018. The General law on the Protection of Personal Data (LGPD). The Official journal of the european Union: Section 1. the capital city of Brasilia, the 15th of August. 2018. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/L13709.htm. Available at: [accessed 13 jun. The year 2025.
BRAZIL. Law no. 13.787, 27 dec. 2018. On the scan, and the use of the computer system for storage, storage, and handling of the medical record of the patient. The Official journal of the european Union: Section 1 Brasília, DF, brazil, on 28 dec. 2018. Available at: https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2018/lei/L13787.htm. Available at: [accessed 13 jun. The year 2025.
SÃO PAULO (State). Law no. 10.705, 28 dec. The year 2000. It’s about a Tax on the Transmission of the “Cause of Death” and a Donation of Any Property, or other Rights (ITCMD). Diário Oficial do Estado de São Paulo, São Paulo, 29 dec. The year 2000. Available at: https://www.al.sp.gov.br/repositorio/legislacao/lei/2000/lei-10705-28.12.2000.html. Available at: [accessed 13 jun. The year 2025.
Camila dos Santos
Graduated in Law at Centro Universitário Padre Anchieta (2024). She is the author of the Articles. Paralegal have Associated with it.
Helen Rodrigues de Souza
She graduated in Law from the Pontifical Catholic University of Campinas, sp, enrolled with the Brazilian bar association, São Paulo (OAB/SP) (2019). Training in Human Rights and Social, from the Portuguese Catholic University in Lisbon (2020). Training in Data Protection Officer by – Law, the General Data Protection by Renato Saraiva Education Complex (2021). College Education on the Topics of Advanced Private and Public Law from the University of Santiago of Compostela (in 2021). A Master’s degree in Business Admnistration in Tax Management from the University of São Paulo and the Escola Superior de Agricultura ‘ Luiz de Queiroz (2022). Participation in the book “the Tax on agriculture”, by editora Lumen Juris (2023). The training in Litigation, Strategic, Getulio Vargas Foundation (2024). A post-graduate degree in Corporate Law from the Pontifical Catholic University of Rio Grande do Sul (2024). Attending a Latin-Legum Magister in Corporate Law and Capital markets, the Brazilian Institute of Capital markets in Sao Paulo. She is the author of the articles. As secretary-General of the Committee of the Business Law of the OAB/SP) the 33rd Subsection, Jundiaí, SP, brazil). The advocate and head of the Department, the Advisory does have Associated with it.
Interest on shareholders ‘ equity: A tool for saving the tax and the changes to the law 14.789/23
Interest on shareholders ‘ equity the following as an effective strategy for the economy, a tax on the taxable Income for the year, even after the restrictions of the law, 14.789/23, which was limited to its elements.
The interest on CAPITAL, Interest on Capital, as a tool for strategic planning, the tax is available at the companies in the brazilian tax by your taxable income. Unlike in the case of cash dividends, which do not affect the basis for the calculation of the corporate income TAX and the social contribution on net income, of the amounts paid by way of interest on CAPITAL are deducted from the corporate tax base, which may result in fiscal savings significantly.
It is a mechanism that, when properly structured, can substantially reduce the tax burden of the business, while at the same time that it pays to its members.
With the entry into force of this law, 14.789/23, after 2024, have implemented new rules and regulations that have an impact on the tax deduction for the expenditure of CAPITAL, generating impact in its application, requiring, therefore, a greater attention to the taxpayers in order to avoid legal implications.
In this sense, the present article is to present the best of the interest on the capital and major changes.
1. Concept of limits and deductible CAPITAL:
The community process (JCP) that correspond to one of the many forms of return on the capital invested by the partners, the interest paid or credited to the legal entity, the individual, to the shareholders or to the shareholders, in consideration of the shareholders ‘ equity.
When you distribute to the partners, the amount will become an expense is deductible on the basis of the calculation of the corporate income TAX and the social contribution on net income, in the basis of the taxable Income for the year, this deduction is limited by law 14.789/23.
They are referred to the two boundaries of the fact that, being applied in all cases, whichever is greater. The limits are:
(i) 50% of the retained earnings and revenue reserves; or
(ii) 50% of the net profit for the year prior to the recognition of its own CAPITAL, and the social contribution on net income.
The rate of income tax of at least 15% of the amount received by members, individuals must be taken into account, but such a tax is often offset by the savings of auditors of the company, you can get up to 34% of the value of the deductible, whereas, the corporate income TAX (15%), and the additional corporate income TAX (10%), and TAXES (9%).
1.1. personal:
The members of the receiving community process (JCP) will be subject to the payment of income tax – Tax deducted at Source at the rate of 15% of the amount received. There are a burden to be borne by the individual, when the effect of the distribution of interest on CAPITAL.
In light of this, it is crucial to carry out a preliminary analysis on the profit realized on the distribution, there is a view that, although all the partners will be taxed on the global economy (business + partner) can to be a positive one.
This operation may result in a lower net-of-a 19% relative to the distribution of dividends to shareholders, which, though free, to a person, they are not tax deductible for the corporation subject to the tax in full by 34%.
1.2. the legal Person
On the receipt of the interest on CAPITAL, for a legal entity in Brazil, it is not intended as a value consists of the revenue, and suffers from lump-sum taxation (IRPJ, CSLL, PIS, and COFINS), making it ineffective in this scenario.
1.3. Residents in the outdoors
The distribution of the JCPJ to natural persons and legal entities residing abroad, there is a need for a risk assessment concerning the treaties and the tax applied in the context of the scan, as it is a mechanism for distributing the profits, only in Brazil, which may have an interpretation as distinct from other countries.
1.4. economic Efficiency compared to the dividend
Although it is the CAPITAL enseje tax at source, to a partner natural person, as opposed to dividends (currently free), the fact that the company that makes it an alternative to the process is the most advantageous. On a net basis, the economy, the tax can reach up to 19% in relation to the distribution via dividends are fully taxable at the entity, without any of the tax benefits.
2.&vaginal bleeding, Changes in legislation after 2024
With the entry into force of this law, 14.789/23, is the rule of the community process (JCP) has undergone significant changes since January 1, 2024. The changes introduced by the new legislation that have a direct impact on the manner of calculation of interest on CAPITAL, thereby reducing the scope of the basis of the calculation is limited to the tax benefits provided by the companies optantes by the taxable Income for the year.
The main changes with respect to the reset of the accounts that make up stockholders ‘ equity, for the purpose of calculation of interest on CAPITAL. After 2024, it will only be deemed to be for the following items:
(i) the paid-up capital stock;
(ii) the reserve capital from the capital gain on the issuance of the shares;
(c) revenue reserves (other than those arising from tax incentives); and
(iv) the profit or loss, earnings, and treasury stock are included in the new legislation.
In this way, they are to be excluded from the basis of the reserves, arising from, out of grants, investments, and other incentives that were previously used to zoom in on the basis of the calculation.
Another point that is relevant with respect to the seal of changes in equity and the artificial in the calculation of interest on CAPITAL, that is, it considers only the increases in equity is effectively added to the capital stock of the company. This measure aims to avoid operations that swelled artificially on the basis of the calculation of the benefit, and without any consideration of actual monetary operation is performed as a form of tax planning, aggressive, aimed at raising the deductible expense of the community process (JCP).
The methodology for the application of the interest rate that is used, it remains in the short-term investments – it is the Rate of Interest on Long-Term, which is applied pro rata portion of the die, that is to say, in proportion to the number of days in the period as the basis for the calculation.
These changes, by restricting the possibilities of a deduction, has an impact on the effectiveness of a community process (JCP) as a tool for tax planning. The internal Revenue service, including, but he has published a manual for the guidance returned to taxpayers, with the objective to standardize the procedures, as well as to mitigate the risk of a claim arising from misinterpretations of the new times.
Conclusion and considerations
In practical terms, the changes will promote a reduction in the deductibility of the interest on CAPITAL, and, as a consequence, an increase in the burden of paying the tax, effective as of the company making the payment. The new law requires, therefore, a review of the strategies, taxation and more attention is given to the accounting standards used in the calculation of the benefit.
In spite of the limitations, as amended by the law 14.789/23), the distribution of profits by way of a community process (JCP) is an alternative to the tax advantage for businesses optantes by the rules of the taxable Income for the year, by providing material reduction in the taxable income of the corporation, especially when it is compared with the distribution of a dividend, which has the character of a deductible.
Even with the recent limited to, interest on CAPITAL, it remains one of the most effective tools for saving tax for businesses in the basis of the taxable income for the year. Their proper use can significantly reduce the cost of capital and optimize the distribution of the results.
s
t
s
https://www.migalhas.com.br/depeso/432689/um-instrumento-de-economia-fiscal-e-as-alteracoes-da-lei-14-789-23
Interest on shareholders ‘ equity: A tool for saving the tax and the changes to the law 14.789/23
Interest on shareholders ‘ equity the following as an effective strategy for the economy, a tax on the taxable Income for the year, even after the restrictions of the law, 14.789/23, which was limited to its elements.
The interest on CAPITAL, Interest on Capital, as a tool for strategic planning, the tax is available at the companies in the brazilian tax by your taxable income. Unlike in the case of cash dividends, which do not affect the basis for the calculation of the corporate income TAX and the social contribution on net income, of the amounts paid by way of interest on CAPITAL are deducted from the corporate tax base, which may result in fiscal savings significantly.
It is a mechanism that, when properly structured, can substantially reduce the tax burden of the business, while at the same time that it pays to its members.
With the entry into force of this law, 14.789/23, after 2024, have implemented new rules and regulations that have an impact on the tax deduction for the expenditure of CAPITAL, generating impact in its application, requiring, therefore, a greater attention to the taxpayers in order to avoid legal implications.
In this sense, the present article is to present the best of the interest on the capital and major changes.
1. Concept of limits and deductible CAPITAL:
The community process (JCP) that correspond to one of the many forms of return on the capital invested by the partners, the interest paid or credited to the legal entity, the individual, to the shareholders or to the shareholders, in consideration of the shareholders ‘ equity.
When you distribute to the partners, the amount will become an expense is deductible on the basis of the calculation of the corporate income TAX and the social contribution on net income, in the basis of the taxable Income for the year, this deduction is limited by law 14.789/23.
They are referred to the two boundaries of the fact that, being applied in all cases, whichever is greater. The limits are:
(i) 50% of the retained earnings and revenue reserves; or
(ii) 50% of the net profit for the year prior to the recognition of its own CAPITAL, and the social contribution on net income.
The rate of income tax of at least 15% of the amount received by members, individuals must be taken into account, but such a tax is often offset by the savings of auditors of the company, you can get up to 34% of the value of the deductible, whereas, the corporate income TAX (15%), and the additional corporate income TAX (10%), and TAXES (9%).
1.1. personal:
The members of the receiving community process (JCP) will be subject to the payment of income tax – Tax deducted at Source at the rate of 15% of the amount received. There are a burden to be borne by the individual, when the effect of the distribution of interest on CAPITAL.
In light of this, it is crucial to carry out a preliminary analysis on the profit realized on the distribution, there is a view that, although all the partners will be taxed on the global economy (business + partner) can to be a positive one.
This operation may result in a lower net-of-a 19% relative to the distribution of dividends to shareholders, which, though free, to a person, they are not tax deductible for the corporation subject to the tax in full by 34%.
1.2. the legal Person
On the receipt of the interest on CAPITAL, for a legal entity in Brazil, it is not intended as a value consists of the revenue, and suffers from lump-sum taxation (IRPJ, CSLL, PIS, and COFINS), making it ineffective in this scenario.
1.3. Residents in the outdoors
The distribution of the JCPJ to natural persons and legal entities residing abroad, there is a need for a risk assessment concerning the treaties and the tax applied in the context of the scan, as it is a mechanism for distributing the profits, only in Brazil, which may have an interpretation as distinct from other countries.
1.4. economic Efficiency compared to the dividend
Although it is the CAPITAL enseje tax at source, to a partner natural person, as opposed to dividends (currently free), the fact that the company that makes it an alternative to the process is the most advantageous. On a net basis, the economy, the tax can reach up to 19% in relation to the distribution via dividends are fully taxable at the entity, without any of the tax benefits.
2.&vaginal bleeding, Changes in legislation after 2024
With the entry into force of this law, 14.789/23, is the rule of the community process (JCP) has undergone significant changes since January 1, 2024. The changes introduced by the new legislation that have a direct impact on the manner of calculation of interest on CAPITAL, thereby reducing the scope of the basis of the calculation is limited to the tax benefits provided by the companies optantes by the taxable Income for the year.
The main changes with respect to the reset of the accounts that make up stockholders ‘ equity, for the purpose of calculation of interest on CAPITAL. After 2024, it will only be deemed to be for the following items:
(i) the paid-up capital stock;
(ii) the reserve capital from the capital gain on the issuance of the shares;
(c) revenue reserves (other than those arising from tax incentives); and
(iv) the profit or loss, earnings, and treasury stock are included in the new legislation.
In this way, they are to be excluded from the basis of the reserves, arising from, out of grants, investments, and other incentives that were previously used to zoom in on the basis of the calculation.
Another point that is relevant with respect to the seal of changes in equity and the artificial in the calculation of interest on CAPITAL, that is, it considers only the increases in equity is effectively added to the capital stock of the company. This measure aims to avoid operations that swelled artificially on the basis of the calculation of the benefit, and without any consideration of actual monetary operation is performed as a form of tax planning, aggressive, aimed at raising the deductible expense of the community process (JCP).
The methodology for the application of the interest rate that is used, it remains in the short-term investments – it is the Rate of Interest on Long-Term, which is applied pro rata portion of the die, that is to say, in proportion to the number of days in the period as the basis for the calculation.
These changes, by restricting the possibilities of a deduction, has an impact on the effectiveness of a community process (JCP) as a tool for tax planning. The internal Revenue service, including, but he has published a manual for the guidance returned to taxpayers, with the objective to standardize the procedures, as well as to mitigate the risk of a claim arising from misinterpretations of the new times.
Conclusion and considerations
In practical terms, the changes will promote a reduction in the deductibility of the interest on CAPITAL, and, as a consequence, an increase in the burden of paying the tax, effective as of the company making the payment. The new law requires, therefore, a review of the strategies, taxation and more attention is given to the accounting standards used in the calculation of the benefit.
In spite of the limitations, as amended by the law 14.789/23), the distribution of profits by way of a community process (JCP) is an alternative to the tax advantage for businesses optantes by the rules of the taxable Income for the year, by providing material reduction in the taxable income of the corporation, especially when it is compared with the distribution of a dividend, which has the character of a deductible.
Even with the recent limited to, interest on CAPITAL, it remains one of the most effective tools for saving tax for businesses in the basis of the taxable income for the year. Their proper use can significantly reduce the cost of capital and optimize the distribution of the results.
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s
https://www.migalhas.com.br/depeso/432689/um-instrumento-de-economia-fiscal-e-as-alteracoes-da-lei-14-789-23