Business societies can be organized under several Corporate types, which gives partners the ability to choose the structure more consistent with their needs and objectives, according to the business model, growth strategies and legal preferences.
In Brazil, the most adopted corporate types are limited companies and corporations. Limited company is a corporate modality in which partners have their responsibility Restricted to the value of their contributions to the capital, protecting their personal heritage from eventual debts of the organization to the limit of their participation. The corporation, in turn, is a type of company in which capital is divided into shares, and the responsibility of shareholders is limited to the price of acquired shares.
In both corporate types pointed out above, Corporate governance plays an essential role for the development, stabilization and management of conflict in business. “Whether in large or small, publicly open or closed societies, with defined control or pulverized capital, either in family societies, or even startups, corporate governance – appropriate to each stage of social development – can be a fundamental instrument for preventing social conflicts ”(1).
Definition and dimensions of corporate governance
According to the Code of Best Practices of the Brazilian Institute of Corporate Governance (IBGC), corporate governance is “a system made up of principles, rules, structures and processes by which organizations are directed and monitored, with a view to generation of sustainable value for the organization, its partners and for society in general ”(2).
The principles of corporate governance apply to every business organization, constituting the basis on which good governance develops, which are: (i) principle of integrity, which aims at the continued improvement of organizational ethical culture; (ii) principle of transparency, which seeks Provide certain and accurate information on the financial and operational financial health of the business; (iii) principle of equity, performing fair and coherent treatment between partners and other stakeholders, in accordance with their rights, duties and needs; (iv) principle of accountability (liability), which corresponds to the duty of the organization to occupy Consider the social, economic and environmental impacts arising from the exercise of their business activity; and (v) principle of sustainability, which is dedicated to understanding that the protection of the financial viability of the organization is directly related to its interdependence with the economic, social and environmental realities that it is inserted (3).
Corporate governance is structured in agents, organs and the relationship between them. This structuring will be more or less complete depending on the size, the stage of evolution and the nature of the business of society, as well as its corporate type.
The agents – and, as a result, the organs – most involved with corporate operations are: (a) the partners, who make up the General Assembly; (B) Administration counselors and inspectors, which are part of the Board of Directors and the Fiscal Council; (c) the directors, who are the members of the Executive Board; and (d) members of advice advice (4).
The rules of governance, therefore, created by their agents, organize the structures (organs) of the organization, so that, through this set of practices, it seeks to optimize The performance of society as they safeguard the interests of the partners and the stakeholders.
Corporate governance and conflicts of interest between members
The harmony between partners is not only beneficial, but vital to the survival and prosperity of the business organization. Thus, the management and administration structure of society (governance) aims to avoid Or, at least to resolve the conflicts of interest between the partners in the best possible way.
Conflicts between partners are especially present in the dimensions of political and economic rights, which must be exercised in accordance with the legal and statutory guidelines to ensure the perpetrator of the long term society.
Regarding political rights, the ability to influence Strategic decisions and participate in company management are often at the heart of disagreements and controversies in corporate environments.
The right to vote, usually expressed in assemblies and meetings, allows the partners to express themselves about the operational procedures to be implemented in the organization. On the other hand, the power of control – whether it is distributed or concentrated -Refers to the ability to exert a predominant influence on administration, leading the guidelines and strategies to be adopted in society.
The incongruity between the aspirations and visions of the partners on the strategic decisions of society can generate strife. When the control power of society is concentrated, minority partners may feel that their interests are suppressed in social deliberations. In organizations where control is distributed, in turn, even though it is assumed that decisions are made through a more collaborative and inclusive procedure, there is also the possibility of arising decision impact that impact the cohesion of business planning.
Members selection for executive and administrative positions can be presented as a field Confidence for conflict hatching, especially when there are disputes related to the control of management and strategic direction of the company.
In addition, it is the subject of corporate conflicts the exclusion or exercise of the right to withdraw the partner. With regard to the right of withdrawal, disagreements sometimes arise in relation to the assessment and the payment of the partner’s shareholding dissident and the conditions on which the exercise of such right is admitted without impairing the company’s operational continuity.
In turn, the exclusion of the partner – whether judicial or extrajudicial – represents a forced dismissal of one of the partners of society. Beyond the relational differences between the parties, there are financial impacts – since the reduction of the capital of society It can undermine investments in the organization -as well as operational, which can lead to disagreement between the remaining partners in relation to the roles to be assumed and decision -making to allow the continuity of the operation.
Regarding equity rights, they are associated with economic benefits derived from the organization’s operations. Therefore, the distribution of profits, the transfer of quotas or actions and aspects related to business succession, which are themes often marked by corporate controversies.
Profit distribution is a fundamental right of partners. The disputes sometimes originate from disagreement regarding the perception of the value and contribution of each partner to the generation of profits obtained. This conception invariably It is confused with the lack of discernment between the partner and administrator’s roles in the organization, which have different functions and responsibilities. Thus, the disparity in expectations regarding the “correct” ideal fraction of participation in results occurs when there is a lack of well -defined guidelines for the remuneration of administrators and distribution of dividends.
Yet, being Of compensation for the partners, in particular in relation to limited companies, much controversy is installed with regard to the conflict between the concepts of profit x pro-labore, regarding the partner who plays the role of administrator. It is very common that, in the absence of clear rules to determine the amount to be paid due to the work commitment in the exercise of the administration, if Dissatisfaction for non -agreement regarding the criteria set (hours of commitment, productivity, percentage of the results earned, among others).
There are also disagreements between partners regarding the share of profit that will be destined for reserve and reinvestment in the organization itself. There are those who see the need to retain a significant part of profits to ensure growth of society, and others who advocate a more robust distribution of dividends.
Regarding the transfer of corporate participation, entry into society of a new partner, foreign to the operation, can significantly alter the dynamics, culture and management of a society. In this context, concerns arise about dilution of control and eventual changes in business strategies, which can result in significant friction, even threatening the continuity of the business.
Finally, business succession is also a very controversial theme. From the death, interdiction or mease of any partners, the admission of their successors, heirs or ex-spouse may endanger the continuity of management, the preservation of organizational culture and, as a result,, consequently, Sustainability of the company.
The interests of the remaining partners can collide with those of the heirs, successors or former spouses, particularly if the latter do not have a prior involvement or knowledge of the business until the moment of succession.
In this scenario, solid corporate governance is fundamental to ensure that the rights of all partners are respected ( principle of equity ) and that decisions made reflect a equitable perspective of the business.
The governance structure, represented by agents and organs, “must ensure that the organization has clear, effective, implemented and properly disseminated policies and processes” (5) to identify and treat social conflicts. As mentioned above, the most present agents and organs and involved in the organization are:
(A) Members, which makes up the General Assembly:
The partners are committed to ensuring the interests of society and, to this end, must deliberate responsibly on matters elementary to proper organizational functioning. The General Assembly or the Meeting of Partners is the moment when the partners, through the vote, have a voice to express your views and decide substantial questions of the organization.
Thus, the establishment, by means of agreements, of clear policies regarding voting procedures are fundamental to the balance of the business.
(b) Counselors, members of the Board of Directors
Counselors in the Board of Directors ensure that operations and strategies of society are aligned with the interests of the partners and the purposes of corporate integrity. The Board of Directors “must be responsible for determining the strategic objectives, directions and risk profile of the organization, (…) related to its culture and identity” (6).
In view of this, it is paramount that the board of directors promote transparency in the decisions and actions of the company. The clear communication of corporate strategies and results strengthens the confidence between partners and other stakeholders, mitigating the perception of any conflicts of partial interests or management.
(c) Counselors, members of the Fiscal Council
The Fiscal Council has “the responsibility to verify that the organization is in Compliance with its principles and values, reflected in internal policies, procedures and standards, and regulatory laws and devices ” (7). In their supervision work, tax counselors must understand the strategy and risks to form opinion on the financial results and statements presented by the Board of Directors to the members in the Assembly General.
(D) Members of the Advisory Committees
Advisory committees are bodies advising the Board of Directors in the “ Control on the quality of financial statements and internal controls, aiming at the reliability and integrity of information to protect the organization and stakeholders” (8). The most common committees are: (i) audit; (ii) risks; (iii) sustainability; (IV) Ethics and Compliance.
(E) Directors, members of the Executive Board
“The board is the executing body of the end of business activity” (9). The directors are responsible for the implementation of all the company’s operational and financial processes, executing the strategies approved by the Board of Directors.
Furthermore, The contract or bylaws must comply with the purpose of establishing the main rules of operation of the company, with the implementation of solid corporate governance practices, which serve to direct, monitor and encourage the organization, minimizing conflicts and protecting the various stakeholders (10).
Rule differences between limited companies and societies Anonymous
Although often convergent legal structures and instruments, they are in some different aspects of their application to limited societies and corporations, especially in relation to political and economic rights:
Political rights present the following distinctions in relation to voting rights, control, withdrawal and exclusion:
/>/>
Economic rights present the following distinctions in relation to the corporate types in question:
From the above analytical frameworks, the differences of legal rule to the most sensitive subjects to the relationship between quotists/shareholders are evidenced by comparing corporate models of limited and society by action.
Conclusion
In the light of the main challenges faced by the partners, the structural and legal differences between the Limited societies and stock societies, corporate governance, the reason for the peculiarities of each corporate type, will be exercised through their agents and instruments in different ways. The adequacy to the positive and negative normative specificities of each business type is essential to achieve the best effectiveness.
The differences and controversies pointed out throughout this Article may be mitigated or renewed through legal instruments, such as: (i) the formulation of rules and guidelines provided for in the contract or status, which will have about the functioning of society, with the adoption of corporate governance practices; (ii) the celebration of the agreement of quota holders/shareholders; (III) among other measures that can Contribute to the improvement of management, organization and business development.
Regarding conflicts related to political rights, corporate governance agents will have a vast guiding legal structure at their disposal to find solutions to controversies between the partners. Otherwise, in the context of limited societies the framework Legal is limited, often demanding the challenge of establishing conflict resolution criteria at a time contemporary with its confrontation.
Given the nature of the relations between the partners, in limited societies, based on interpersonality, the performance of the Board of Directors, will face, in theory, greater challenge to objectify the controversies and search for solutions based on Data, since the relationship between partners often transcends the simple merchant objective. On the other hand, in stock companies, as a rule, solutions will be more objectively based and will find a greater number of legal provisions at their disposal, since the normative scope provided for in Law no. 6.404/76. It is much broader.
Still in the exercise of political power, the Board of directors facing greater challenges in limited companies, since the proximity with which partners exercise their right to vote is much greater and representative than in corporations. It is important to remember that, in many cases, the constitution of a board of directors in limited companies is relatively recent.
In another context, however, in societies Limited, the Board of Directors, when dealing with a more restricted membership base, has greater ease and agility in decision making, while in corporations, more analytical decisions are often required and based on robust data, due to the need to justify actions and strategies in the face of a wide number of shareholders and regulators.
The nuances mentioned above are also the subject of attention to the members of the Executive Board, in the execution of the organization’s financial and operational procedures. In limited societies, such as the partners themselves may be involved in business management, organization management is closer and personal. Governance is more flexible and execution of strategies are performed with a greater degree of informality, depending on the agreement established between the partners.
On the other hand, in corporations, the board is farther from shareholders and operates with a more rigorous and formalized governance structure. The directors are in charge of managing the company’s operational and strategic aspects, aligning with the vision and direction established by the Board of Directors and the expectations of shareholders.
Regarding economic rights, corporate governance, through its agents and organs, will face challenges in both limited structures and stocks by action. In the first, the controversies will be oriented to the rules and criteria aimed at the distribution of profits (sometimes disproportionately) and pro-labore receipt of the partner Administrator, while in Mondays the challenges are much more associated with the resource allocation rules: percentage of dividends to distribute, allocation in profit reserve accounts, etc.
Regarding the circulation of quotas or actions, either alienation or in business succession, in both corporate types it is common to exist disagreements between partners/shareholders, as it is necessary Establish rules on the right of preference and settlement of corporate interest, which are applicable to each corporate structure.
In short, corporate governance, for its better effectiveness, should be aware of the context, structure and normativity preceding its implementation in a given organization. It is necessary to establish distinct strategic and tactical planning For each organization, taking into consideration its corporate type and the challenges it intends to resolve.
Bibliographic references
(1) GALLO, Giovanna Mazetto. CHIACHIO, Rafaella. The importance of corporate governance in preventing corporate conflicts. December 23, 2022. Available at: https://www.migalhas.com.br/coluna/migalhas-connsensuals/379078/importancia-da-governanca-corporativa-na-prevencao-de-conflitos . Accessed October 3, 2023.
(2) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 17, 2023.
(3) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 19, 2023.
(4) SILVA, Edson Cordeiro. Corporate governance in Companies: Practical Guidance for Guidance for Shareholders, Investors, Administration and Fiscal Counselors, Auditors, Executives, Managers, Market Analysts and Researchers. 3rd ed., Sao Paulo, SP. Atlas Publisher, p. 32, 2012.
(5) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 21, 2023.
(6) Institute Brazilian Corporate Governance – IBGC. Corporate risk management: evolution in governance and strategy. Sao Paulo, SP. IBGC, p. 26, 2017.
(7) Brazilian Institute of Corporate Governance – IBGC. Corporate risk management: evolution in governance and strategy. Sao Paulo, SP. IBGC, p. 27, 2017.
(8) Brazilian Institute of Corporate Governance – IBGC. Management of Corporate risks: evolution in governance and strategy. Sao Paulo, SP. IBGC, p. 28, 2017.
(9) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 53, 2023.
(10) ANDRADE, Adriana. ROSSETI, José Paschoal. Corporate governance: foundations, development and trends. Altas Publisher. 7th ed. São Paulo, 2014.
Julia Oliveira Andre Teixeira
Lawyer, law graduate from Faculties Milton Campos (2019), registered with the Brazilian Bar Association, Minas Gerais Section (OAB/MG) (2019). Specialist for the L.LM Business Law Program by IBMEC (2021), MBA in high performance law by PUC Minas (2022), expert on contractual law from the Getúlio Vargas Foundation (FGV-RJ) (2023). Author of articles. Member of the Commission of Corporate Law of the OAB/MG (2022), member of the Center for Studies of Lawyers Companies (CESA), Executive Secretary of the State Council of Commercial Affairs of the Federaminas. Advisory Lawyer of Portugal Vilela Advogados.
Leonardo Theon de Moraes
Lawyer, Graduated in Law, with emphasis on Business Law, from the University Presbyterian Mackenzie (2012), registered with the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Post Graduate and Specialist in Business Law from the São Paulo Law School of the Getúlio Vargas Foundation (2014), Master in Political and Economic Law from the Mackenzie Presbyterian University (2017), book and articles author, speaker, undergraduate professor, MBA and Executive Education At FIPECAFI, a member of the São Paulo Lawyers Association (AASP), a member of the International Bar Association Business Law and Fuse Committee, member of the São Paulo Lawyers Association (AASP) and president of the Federaminas State Council of Commercial Law. Founding partner of TM Associados. Founding partner of TM Associados
Newsletter | MARCH 2025
Every month, the TM Associados team brings a newsletter with topics essential to the success of your business. We address, in a practical and objective manner, the main highlights in Advisory, Litigation, Labor, and Tax Law, helping you make safer and more strategic decisions. Don’t miss this opportunity to turn information into a competitive advantage! 📩
Advisory
Exclusion of the Estate from the Corporate Structure: São Paulo Court Reinforces the Need for Agility in Business Succession
The succession of partners requires strategic planning and legal diligence to ensure business continuity and prevent disputes. Recently, the 1st Chamber of Corporate Law of the Court of Justice of São Paulo (TJ-SP) rendered an important decision in a case concerning the exclusion of an estate from a company’s ownership structure, providing valuable lessons for business owners and managers.
Understanding the Case
In Interlocutory Appeal No. 2306952-48.2024.8.26.0000, the court reviewed a case involving the exclusion of an estate more than 30 months after the death of a company partner. The company’s agreement provided for the admission of heirs as partners, subject to approval by the remaining partners. However, the company had expressed disinterest in maintaining the deceased partner’s heirs in its ownership structure and proceeded to exclude the estate.
The court, however, suspended the exclusion’s effects, reasoning that, due to the lengthy period during which the company had tolerated the estate’s presence in its structure, there was an implied acceptance. During that time, the estate had exercised partnership rights, participated in meetings, and received strategic information — all indicative of tacit consent.
Legal and Business Impacts
The TJ-SP held that, given the long delay before exclusion, the company should follow the formal exclusion process outlined in Article 1,085 of the Brazilian Civil Code, ensuring due process and the right of defense. The ruling emphasizes that a prolonged tolerance of an estate within a company’s structure may prevent a simplified exclusion.
The decision highlights the need for speed and formality in addressing succession issues. If a company does not wish to maintain heirs as partners, it must act promptly and formally to record its position and ensure that the exclusion is carried out with full legal certainty.
Recommendations to Mitigate Risk
To prevent unintended inclusion of heirs, it is recommended that partnership agreements clearly define restrictions regarding the admission of heirs. Additionally:
How Can TM Associados Help?
Our team of experts is ready to assist your business in succession planning and the implementation of mechanisms to mitigate legal risks, including:
Proper estate and succession planning ensures your company’s stability and prevents unnecessary conflict.
Contact TM Associados and rely on our expertise to guide you through a safe, effective succession process.
Litigation
The Importance of Trademark Registration
Your brand and trade name are valuable assets that distinguish your products and services in the market. However, without proper registration, your trademark is exposed to imitation, unfair competition, and litigation. Trademark registration is essential to ensure exclusivity and protect your business identity.
What Is a Trademark?
A trademark is a distinctive sign that identifies a product or service and differentiates it from others. It may consist of words, images, symbols, or any combination thereof.
Under Brazilian Industrial Property Law (Law No. 9,279/96), a registered trademark grants its owner exclusive nationwide rights to use it in the relevant market segment.
Why Register a Trademark?
Trademark registration offers numerous benefits, such as:
Trademark Registration Process
Registration in Brazil is filed with the National Institute of Industrial Property (INPI) and involves several steps:
Verify if similar trademarks exist to avoid conflicts.
Submit the request to the INPI, specifying the classification under the Nice Agreement and paying the applicable fees.
INPI reviews legal compliance and distinctiveness.
After approval, the application is published in the Industrial Property Gazette (RPI), allowing third parties 60 days to oppose.
If no opposition is sustained, INPI grants registration valid for 10 years, renewable indefinitely.
How to Ensure Successful Registration
How Can TM Associados Help?
TM Associados provides comprehensive trademark protection services—from feasibility searches to defense in opposition or judicial proceedings.
Don’t let your brand be vulnerable. Contact us and safeguard your most valuable asset.
Labor
STF: Justice Cármen Lúcia Overturns Labor Court Ruling Recognizing Employment Relationship
Supreme Federal Court (STF) Justice Cármen Lúcia upheld a constitutional complaint filed by a forestry company challenging a decision from the 9th Regional Labor Court (TRT-9) that had recognized an employment relationship between a director and the company, alleging fraudulent outsourcing.
The regional court based its decision on the principle of the primacy of reality, determining that despite the contractual form, the relationship met the legal criteria for employment (personal service, continuity, and subordination).
However, the STF overturned that ruling, reaffirming the legality of outsourcing, even for core business activities, as long as constitutional principles and labor protections are respected.
This decision reinforces legal certainty for companies and workers alike, confirming that outsourcing, when properly structured, does not violate labor law.
Conclusion
Justice Cármen Lúcia’s ruling significantly impacts businesses by reaffirming the validity of outsourcing, reducing legal uncertainty, and encouraging workforce flexibility while maintaining employee protections. It also promotes predictability in labor relations and reduces unnecessary litigation.
Tax
“Revenue Harmony Program”: A New Relationship Between Taxpayers and the Brazilian IRS
The Federal Revenue Service of Brazil (RFB) launched the Revenue Harmony Program (Programa Receita Harmonia) under RFB Ordinance No. 467/2024, an initiative aimed at preventing tax disputes and promoting compliance through cooperation and transparency between the IRS and taxpayers.
What Is the Program?
The program seeks to recognize and reward taxpayers who demonstrate consistent compliance. It aims to reduce tax litigation, increase predictability, and build trust through cooperative mechanisms that prevent assessments and penalties.
This approach aligns with OECD-recommended tax compliance models, already implemented in countries such as the UK, Australia, and Chile.
Core Principles
Main Initiatives
The RFB created three programs to promote compliance:
Benefits for Businesses
Taxpayers with high compliance ratings may enjoy benefits under the 2025 Tax Reform, such as:
The program also promotes self-regularization, encouraging companies to correct inconsistencies proactively, without penalties.
How Can TM Associados Help?
Our tax team is ready to help your company meet the program’s compliance criteria, ensuring alignment with RFB standards and mitigating fiscal risks.
To understand how this initiative may impact your business and how to maximize its benefits, contact us to schedule a personalized consultation.
Sincerely,
TM Associados Team
Newsletter | FEBRUARY 2025
Every month, the TM Associados team brings a newsletter with essential topics for the success of your business. We address, in a practical and objective way, the main highlights in Advisory, Litigation, Labor, and Tax Law, helping you make safer and more strategic decisions. Don’t miss this opportunity to turn information into a competitive advantage! 📩
Advisory
Digital Law and Business Protection in the Virtual Environment
The advancement of technology and the growing use of the internet have brought numerous advantages to businesses—but also significant legal challenges, particularly in relation to data protection, regulatory compliance, and cybersecurity. Digital Law has emerged as an essential branch to regulate and protect business operations in the virtual environment.
Understanding the Context
Digital Law encompasses the rules and regulations that govern the use of the internet and digital media, providing greater legal certainty to businesses. Given the rise in cyberattacks and data breaches involving sensitive information, it is essential to implement preventive measures and ensure compliance with applicable legislation.
In Brazil, three key laws frame this context:
Impacts on Business
Compliance with Digital Law standards is essential for mitigating risks and avoiding penalties. Companies that process customer data must ensure information security, implement privacy policies, and adopt best practices in digital governance. Non-compliance with the LGPD can result in significant fines and reputational damage.
Other challenges businesses face include:
How Can TM Associados Help?
Our Advisory team is ready to support your company in adapting to the LGPD and in drafting secure electronic contracts.
We also assist in revising and adapting Terms of Use, Privacy Policies, and digital compliance procedures to ensure alignment with current regulations.
Follow the latest trends and regulations in Digital Law with us and protect your business from legal risks.
Contact TM Associados and ensure compliance and security for your business in the digital environment.
Litigation
Civil Code Reform – Bill No. 4/2025
As part of our commitment to keeping you informed about legislative updates that impact the legal business environment, we highlight a significant development: the proposal of a new Civil Code.
On Friday, January 31, Bill No. 4/2025 was submitted to the Federal Senate. It stems from a preliminary draft prepared by a committee of legal experts chaired by Supreme Court Justice Luis Felipe Salomão. This marks the beginning of a new phase in the debate and modernization of Brazil’s civil legislation.
The proposal aims to modernize civil law to reflect contemporary social and technological realities.
What Does the Bill Propose?
The draft introduces important changes in various areas of civil law. Key updates include:
Attention to Detail
As Bill No. 4/2025 is still in its early stages, it may be amended before final approval. Companies should closely follow its progress and prepare to revise contracts, internal policies, and strategic plans accordingly.
[Click here to read the full text of Bill 4/2025.]
How Can TM Associados Help?
TM Associados is closely monitoring every stage of this legislative process and its implications for our clients and partners. Our team is available to provide legal guidance and preventive strategies in anticipation of these regulatory changes.
[1] Art. 19, Marco Civil da Internet: “Application providers are only held liable for third-party content if, after a specific court order, they fail to take action within the defined timeframe.”
[2] STF Precedent: https://www.migalhas.com.br/quentes/340215/stf-nao-existe-direito-ao-esquecimento-na-area-civel
Labor
Update on Ordinance 57/2025 – New PPE Certification Rules
On January 16, 2025, the Ministry of Labor and Employment published Ordinance No. 57/2025, which amends Regulatory Standard NR-6, governing the use of Personal Protective Equipment (PPE). The main update concerns item 6.9.4, establishing new rules for the issuance and use of the Certificate of Approval (CA) granted to PPE manufacturers and importers.
The updated rule states:
“The transfer of a CA issued to one manufacturer/importer to another is not permitted. Each must obtain their own CA through the standard process.”
This change takes effect on July 16, 2025, six months after its publication.
What Does This Mean in Practice?
Previously, a manufacturer or importer could use a CA issued to another supplier without undergoing formal certification. This posed safety risks, as there was no guarantee that the new supplier met technical and regulatory requirements.
Under the new rule, each PPE manufacturer or importer must obtain their own CA. Sharing or reusing CAs is no longer permitted. The goal is to ensure stricter quality control, traceability, and worker safety.
Impacts on Stakeholders
Deadlines and Penalties
The rule takes effect July 16, 2025. Non-compliance may lead to administrative penalties, fines, and equipment confiscation. Employers may also be held liable.
How Can Your Business Prepare?
Conclusion: Prepare for 2025!
Ordinance 57/2025 aims to enhance PPE quality and safety by eliminating CA sharing. However, this will require companies to plan and act proactively.
TM Associados is available to help you interpret and implement the new requirements.
Tax
DCTFWeb – New Tax Reporting Rules for 2025
On February 7, 2025, the Brazilian Federal Revenue Service (RFB) published Normative Instruction RFB No. 2.248/2025, amending RFB Instruction No. 2.237/2024 and establishing new rules for the fulfillment of subsidiary tax obligations.
Key Update
The instruction eliminates the traditional PER/DCOMP (Declaration of Federal Tax Credits and Debits) and replaces it definitively with DCTFWeb for the following taxes starting January 2025:
The declaration of these taxes will now be made through the Tax Inclusion Module (MIT) on the RFB’s e-CAC web portal.
Deadline Changes
The DCTFWeb must now be submitted by the 25th of the month following the taxable event.
Exceptionally, the submission deadline for events occurring in January 2025 has been extended to the last business day of March 2025.
Impacts on Businesses
How Can TM Associados Help?
Our tax team is ready to support your business in adapting to this new standard, ensuring full compliance and avoiding penalties.
Contact us to schedule a personalized consultation and ensure your company is aligned with the new tax rules.
Newsletter | JANUARY 2025
Advisory
Limits of ITBI Exemption in the Contribution of Real Estate Capital Stock
The Brazilian Federal Supreme Court (STF) will analyze a critical issue for the real estate sector: the application of the exemption from the Real Estate Transfer Tax (ITBI) in the contribution of real estate as capital stock in companies whose main activity is the purchase, sale, or lease of real estate. The decision will directly impact the taxation and asset structuring of these companies.
Understanding the Context Article 156, §2, I of the Federal Constitution provides for ITBI exemption on transfers of assets incorporated into the equity of a legal entity for the purpose of capital contribution. However, this exemption does not apply to companies whose predominant activity is the purchase, sale, or lease of real estate.
The case under review involves a property management company contesting the collection of ITBI by the Municipality of Piracicaba (SP) on the transfer of a property used for its capital stock contribution. The São Paulo Court of Appeals (TJ-SP) upheld the charge, arguing the company falls within the constitutional exception due to its main activity.
Impacts on the Real Estate Sector The STF decision, which has general repercussion status (Topic 1,348), promises to bring legal certainty and uniformity to the application of tax exemptions. The ruling may determine whether the exemption exception should be interpreted restrictively—applying only to specific cases such as mergers, incorporations, or spin-offs—or broadly to any capital contribution.
How Can TM Associados Help? Our advisory team is ready to guide your company on the potential impacts of this decision and on the best estate and tax planning strategies.
We are closely monitoring the progress of this case and are available to provide specialized legal support.
Follow our updates and prepare to adapt your business strategy in light of changes in the legal landscape.
Contact TM Associados and ensure legal certainty for your business.
Litigation
Credit Recovery: Strategies for Companies to Prevent and Collect Debts
Maintaining your business’s financial health is essential for sustainable growth. Credit recovery is a key process to reclaim amounts owed by delinquent clients. This process can be carried out extrajudicially—through negotiations and amicable agreements—or judicially, involving the Judiciary to ensure the obligation is fulfilled.
Essential Documentation to Prevent Default Efficient management starts with organizing documents that support the business relationship. These are crucial:
These documents are vital for both preventing default and substantiating potential claims.
Tips to Prevent Default
How to Proceed in Case of Default?
Extrajudicial Collection (no lawsuit):
Judicial Collection (with lawsuit):
Count on TM Associados to Recover Your Credits Our expert team is prepared to guide your company through every stage of credit recovery—from friendly negotiation to legal action. We deliver strategic, customized solutions to protect your business’s financial health.
Don’t let default threaten your company’s growth. Talk to us and learn how we can help!
Labor Ordinance No. 3,665/2023 and the Changes to Work on Sundays and Holidays
Ordinance No. 3,665/2023, published in November 2023 by the Ministry of Labor and Employment, amended Ordinance No. 671/2021, bringing significant changes to the rules governing work on Sundays and holidays. These changes impact companies in sectors such as fish, meat, fruit, and vegetable retail, as well as activities in ports, airports, roads, hotels, wholesalers, and distributors.
In light of these changes, it is necessary to revisit the regulatory framework prior to the effectiveness of the new Ordinance.
Amendment to Ordinance No. 671/2021
Before Ordinance No. 3,665/2023 came into effect, the rules on work on Sundays and holidays were based on Articles 67 to 70 of the Consolidation of Labor Laws (CLT) and on Ordinance No. 671/2021:
However, these legal provisions were relaxed by Ordinance No. 671/2021, which allowed direct negotiation between employers and employees to authorize work on Sundays and holidays, formalized through an employment contract.
The ordinance also permitted individual agreements to define work schedules in certain cases, and included a broad list of authorized activities, allowing many economic sectors to operate on Sundays and holidays without the need for collective bargaining.
As a result, there was greater flexibility in the trade and service sectors, which had more freedom to operate on these days, provided general labor laws were followed.
What Changed with Ordinance No. 3,665/2023?
With the new Ordinance, the rules became stricter and are now centered on collective bargaining, with a direct impact on various economic activities.
Elimination of Individual Agreements:
Reduction in the List of Authorized Activities:
Stricter Rules for Holidays:
When Do These Changes Take Effect?
What Are the Practical Impacts?
For Workers:
For Companies:
How Can Your Company Prepare?
Conclusion: Get Ready for 2025!
Ordinance No. 3,665/2023 seeks to balance workers’ rights with operational needs. However, it demands attention and planning to ensure compliance.
If you need support to interpret the new rules or to adapt your company’s operations, [click here] to receive guidance!
[1] MTE ORDINANCE No. 3,665, OF NOVEMBER 13, 2023 Amends Ordinance/MTP No. 671, of November 8, 2021. (Process No. 19964.203605/2023-95).
The MINISTER OF STATE FOR LABOR AND EMPLOYMENT, in the exercise of the powers granted by Article 87, sole paragraph, item II, of the Constitution, Article 10, sole paragraph, of Law No. 605, of January 5, 1949, and Article 154, §4, of Decree No. 10,854, of November 10, 2021, and considering the provisions of Article 6-A of Law No. 10,101 of December 19, 2000, which establishes that “work on holidays is permitted in general commercial activities, provided it is authorized by a collective bargaining agreement and in compliance with municipal legislation, as set forth in Article 30, item I, of the Constitution,” resolves:
Art. 1 Revoke sub-items 1, 2, 4, 5, 6, 17, 18, 19, 23, 25, 27 and 28, of item II – Commerce, of Annex IV, of Ordinance/MTP No. 671, of November 8, 2021.
Art. 2 Sub-item 14, of item II – Commerce, of Annex IV, of Ordinance/MTP No. 671, of November 8, 2021, shall now read: “14) open-air markets;”
Art. 3 This Ordinance shall enter into force on the date of its publication.
Tax Law
Expansion of Tax Incentives Subject to DIRBI
On December 27, 2024, the Brazilian Federal Revenue Service (RFB) published Normative Instruction RFB No. 2,241/2024, introducing significant changes to the Declaration of Tax Incentives, Waivers, Benefits, and Immunities (DIRBI). The new rule expands the list of tax incentives subject to declaration and sets new deadlines for taxpayers.
Context of IN RFB No. 2,241/2024
This regulation replaces the Single Annex of IN RFB No. 2,198/2024 and broadens the scope of incentives, waivers, and tax benefits that must be reported in the DIRBI.
The newly introduced items include incentives numbered 44 to 88, covering programs such as: cultural and artistic activity incentives, support programs for technological innovation, export benefits, research and development encouragement, special regimes for infrastructure, and tax reliefs for the agricultural sector.
Deadlines and Obligations
It is important to note that the 45 new tax incentives included in IN RFB No. 2,241/2024 must be declared retroactively. This means incentives related to the calculation periods from January to December 2024 and beyond must be reported or amended by March 20, 2025.
Impacts for Companies
This expansion aims to increase transparency and oversight of tax benefits utilized by companies across various sectors. However, it also presents new compliance challenges, requiring greater accuracy in data collection and reporting.
Failure to submit DIRBI or submitting it after the deadline will subject legal entities to the following penalties, calculated monthly or per fraction thereof, based on the gross revenue of the period:
In addition, submitting DIRBI with omissions or inaccuracies may result in a fine of 3% on the omitted, inaccurate, or incorrect amount, with a minimum of R$500.00.
How Can TM Associados Help?
Our tax team is fully prepared to assist your company in reviewing applicable tax incentives and in accurately preparing and submitting the DIRBI, ensuring full compliance with the new regulation.
For more information or to schedule a consultation, contact TM Associados and keep your company aligned with current tax obligations.
Tax Reform: New Rules and Opportunities for Your Business
On January 16, 2025, a historic milestone was reached for Brazil’s tax system with the enactment of Complementary Law No. 214/2025. This new law, which regulates the Tax Reform, introduces sweeping changes to the way taxes are calculated and collected nationwide.
What changes with the Tax Reform?
The main highlight is the creation of two new taxes: the Tax on Goods and Services (IBS) and the Social Contribution on Goods and Services (CBS). These taxes will replace existing indirect taxes such as ICMS, ISS, PIS, and Cofins, streamlining the tax system and promoting greater fairness.
Main Impacts for Companies
What Can TM Associados Do for You?
In light of these changes, having expert guidance is crucial to ensure your company complies with the new rules and seizes the opportunities arising from the reform. TM Associados offers a comprehensive range of services to assist clients through this process, including:
Contact us today to schedule a personalized consultation.
Sincerely,
TM Associados Team
Insurance Coverage and the Duty of Good Faith in Activation
O acionamento de um seguro é um processo fundamental para garantir a proteção e a tranquilidade dos segurados diante de eventos inesperados. No entanto, dentro desse contexto, o acionamento envolve direitos e responsabilidades tanto para o segurado quanto para a seguradora.
A seguradora possui uma série de obrigações legais quando do acionamento do seguro, principalmente, mas não se limitando a isso, quanto ao efetivo cumprimento do contrato, seguindo os procedimentos e condições previamente estabelecidas – e comprimindo os respectivos prazos para tanto, desde que, evidente, o sinistro esteja coberto por ele.
A aprovação do sinistro, quando notificado pelo segurado, deve ser realizada por meio de uma análise formal, justa e imparcial pela seguradora, que avaliará a cobertura contratual e os requisitos necessários para a efetiva indenização, se cumpridos ou não.
Já no âmbito do segurado, para que, no momento oportuno, possa usufruir da cobertura adquirida, deve manter os pagamentos do prêmio de forma sempre adimplente, de acordo com os prazos e formas de pagamento estabelecidos no contrato.
Diante de um evento inesperado, o segurado, munido dos documentos adequados (os quais sempre deverão estar listados no contrato), fornecerá todas as informações para a análise e investigação do sinistro, adequando seus requerimentos dentro do prazo estipulado e cumprindo com todas as determinações da seguradora para o, enfim, acesso ao prêmio final de cobertura.
Cabe aqui ponderar quanto ao dever de mitigação de danos por parte do segurado, porque apesar de a seguradora levar em consideração questões formais e análise prática, não há como ignorar que cabe ao segurado, antes do evento inesperado, a tomada de medidas razoáveis para mitigar os danos e evitar que tais eventos não se concretizem ou ao menos que sua gravidade seja relativizada.
Questões legais podem surgir durante o processo de aprovação do sinistro, como a má-fé e as exclusões de cobertura, que exigem atenção e compreensão de ambas as partes. Em casos de desacordo quanto à indenização, é possível buscar a resolução por meio de métodos alternativos ou mesmo recorrer ao Poder Judiciário, oportunidade em que o juízo determinará se aquele determinado evento danoso se enquadra em alguma hipótese de cobertura.
Posto isto, é fundamental que ambas as partes atuem de acordo com os termos estabelecidos no contrato, agindo com boa-fé e transparência. O segurado tem o direito de receber a cobertura adequada, enquanto a seguradora possui obrigações legais de análise e indenização oportuna, tudo isso, desde que o contrato tenha sido cumprido.
Para ilustrar a aplicação prática do acionamento de seguro, consideremos o exemplo de um segurado que possui um seguro automotivo abrangendo danos materiais. Imagine que o segurado se envolve em um acidente de trânsito, resultando em danos consideráveis ao veículo segurado.
Nesse caso, o segurado deve notificar imediatamente a seguradora sobre o sinistro, fornecendo informações detalhadas sobre o ocorrido, como local, data, descrição dos danos e possíveis testemunhas. A seguradora, por sua vez, deve iniciar a análise do sinistro de forma diligente, verificando se o sinistro está coberto pelo contrato de seguro.
Uma vez que seja confirmada a cobertura, a seguradora pode solicitar documentos adicionais, como boletim de ocorrência policial, laudo pericial e orçamentos de reparo.
Após a conclusão da análise do sinistro, a seguradora deve comunicar sua decisão ao segurado, informando se o sinistro é considerado indenizável e, caso positivo, qual será o valor da indenização. É fundamental que a seguradora cumpra o prazo estipulado no contrato para efetuar o pagamento da indenização ao segurado.
No exemplo mencionado, o segurado cumpriu seu dever de notificar o sinistro e colaborou com a seguradora fornecendo as informações necessárias. A seguradora, por sua vez, seguiu seus deveres de análise imparcial e oportuna, oferecendo a devida indenização ao segurado.
Bárbara Rita Escapin – Advogada, graduada em Direito pelas Faculdades Integradas Rio Branco – Fundação de Rotarianos de São Paulo, inscrita na Ordem dos Advogados do Brasil, Seção São Paulo (OAB/SP) (2019). Formação em Educação Executiva/Compliance pela Fundação Getúlio Vargas (2022). Pós-graduanda em Direito Empresarial pela Fundação Getúlio Vargas. Autora de artigos. Advogada no TM Associados.
Leonardo Theon de Moraes – Advogado, graduado em direito, com ênfase em direito empresarial, pela Universidade Presbiteriana Mackenzie (2012), inscrito na Ordem dos Advogados do Brasil, Seção São Paulo (OAB/SP) (2012). Pós-graduado e Especialista em Direito Empresarial pela Escola de Direito de São Paulo da Fundação Getúlio Vargas (2014), Mestre em Direito Político e Econômico pela Universidade Presbiteriana Mackenzie (2017), autor de livros e artigos, palestrante, professor na graduação, MBA e Educação Executiva na FIPECAFI e membro da Associação dos Advogados de São Paulo (AASP). Sócio fundador do TM Associados.
Ways of Attracting Investment, and Alternatives to the Investment of Capital
There are only a few business owners who know the various ways of attracting investment, which is now on the market and it can be used as an alternative to the investment of their own resources. There is no question that, depending on the circumstances, the allocation of financial resources to own the best solution, but it’s not always the entrepreneur to have such a resource to invest in their business.
Investing through the capital, is known as the equity it can be carried as an increase in the capital stock, is one of the most common ways in which the one(s) of the shareholder(s) will be(will be) give the values will be(will be) your(s) of interest(s) and augmented(s), while the rest of the members, provided that they do not exercise its right of first refusal on the rise in the capital, you will have their holdings diluted, in a proportionate manner. This is a contribution that can occur in a currency (the delivery of the money, in cash, by way of capitalisation of profits or, in fact, of the rights or property liable to assessment in the money, the transfer of ownership of real estate, for example). In these cases, the business owner must be aware of the business can gain from equity investments, there is a difference between the value declared on your tax return, and the value is displayed when the increase of the share capital.
When capitalized, the profit[1], in spite of all the owners have achieved an increase in equity, corresponding to an increase in the value of the shares loans, the increase of capital is not taxed on the income tax return.
The contribution to the increase of the share capital, in connection with any of its terms, you may only have a portion of the amounts converted in the increase of the share capital, with the creation of new shares, while the other is reserved as a capital gain[2] – which is nothing more nor less than the issuance of shares by an amount greater than the par value attributed to them (the one provided in the articles of association).
This is a strategy that is made possible, in any of the transaction to avoid the increase of the capital city, but for some reason, the rest of the members, although it is not part of the rise, they have not agreed to have diluted its stake. In these scenarios, the difference between the total value of the issue and the par value of the shares is to be considered as a capital gain, which, in the case of the issuance of the shares, that is, the S/A’s, it becomes even more attractive for this type of company, given the fact that it is not subject to tax, however, is in the LTDA”s, there is still controversy as to the exemption of tax[3] what can make this is a strategy that is not so attractive, but it is still a perfectly valid one.
The other way, it is also common equity and is the one that can be converted or not, that is, the operations of the loan, in which some values are taken, and then later returned, including inflation and interest rates. Since the mutual convertible loans, which means that once you inadimplida of the bond, and the values of loan may be converted into an increase of the share capital, for the one who has borrowed.
When carried out at(s) of the person(s) of the shareholder(s), the mutual you should always provide for the return of the value added of inflation and interest rates, so that the operation is not to be confused with that of a single contribution to the increase of the share capital or, in more extreme cases, the operations are simulated so as to hide the confusion associated between a particular asset of the owner and the property of the company.
Mutual is a long-term strategy for the attraction of investment from a third party. The provider does not necessarily have to be a member of the company (borrower) and it is likely that the investment operations of the party to be brought in this way. If it can be converted, when the inadimplida to the obligation of payment by the company to the lender that executes the contract and are entered into the corporate structure.
For these transactions, whether entered into the agreement with a partner or with a third party, it is crucial that you expected to be the trigger for the completion of the conversion of the amounts loaned at interest, as well as why, how can this be done with the indication of the order of the trial and any potential out-of-stake, which the lender may be able to achieve this.
The other point to note relates to the aspect of the tax on these transactions, especially with respect to the payment or non-ADOPTED on all these operations, it will depend on the particular circumstances, and, therefore, should be considered on a case-by-case[4], as well as the impact of taxes on the income (interest) held by the lender because the loan is made[5].
Despite the fact that the conversion to being a safe return to the investor, and is easy to perform, once again joined in the framework of company law, the lender shall share in the risks of the business. Not only that, but in any investment operation that involves, also, the entrance into the corporate structure, will cause the investor to assume all of the rights and obligations inherent in membership and as a result of your sharing of your results, you may be able to do it with you on the amounts originally invested, not to be converted to an income-or even if you are an investor, is now a partner, you have to bear the losses.
One way to invest in, and do not enter into the corporate structure of the company in which you want to be is through the creation of a sociedade em conta de participação[6] this will be used as a sort of bridge to the final destination of the values. This type of company, we have a picture of the ostensible partner-the one who actually runs the company and its values, and the partner-participant, that it has a duty only to the supply of the agreed-upon amount, you will be exempted from any liability, including that of the company, which shall be borne solely and exclusively by the partner programme. In addition to the separation of duties, this is appealing because of the results of the company shall be allocated among the partners programme and the participants.
In spite of being used, for the most part, to the operations of the investment, the capital of the third party, it can also be used for the operations of the equity, we can see that the values contributed by a partner to a participant shall not be subject to the interest that would arise, of course, the operations of the loan.
Another option is a call option, the operation in which they paid a certain amount for a future met certain requirements in order to increase the participation has to be taken or to go in the corporate structure. When, in the exercise of an option to purchase, as it will pay the buyer the amount of the participation purchased. What you pay for in advance, that is, to have the right to be in the future, you have the option to purchase.
From the point of view of tax, the investment can be attracted by the option, the purchase price will be paid when the payment for the home, since joining the company as a receivable, and not as a loan, as well as when you do the exercise, because of the difference between the amount initially paid, and the amount you have paid for the actual purchase of a membership is considered as a capital gain.
More recently, the funding of investments through online platforms vitalizou, the so-called equity crowdfunding,. in Spite of the name, this type of investment that is aimed at raising funds from third parties, and not from its own members. It’s an operation done, as I said, by way of an on-line platform (under the framework of the normative regulations of the CVM 588/2017), in which case the company offers a certain degree of participation in its capital, in return for the investment.
The operation is similar to the well-known great online, but there are some differences, such as the expenditure of funds, and rules, and considering that a great online have rules of their own, while equity crowdfunding is regulated by the securities commission.
For a society to make the investment through equity crowd funding, you must meet a few requirements, such as: (i) the company must be in business[7]; and (ii) have annual gross revenue of R$ 10.000.000,00; (iii) is not listed as an issuer of securities; (iv) the investment shall be limited to R$ 5.000.000,00; (v) the campaign may not last longer than one hundred eighty (180) calendar days.
In addition to all of the ways of attracting the investments listed above, as well as other, non-standard, they are also effective in the promotion of your business. The operations of buying and selling companies, M&A, ipos on the Stock exchange, in the case of joint-stock companies, and the expansion of its activities over the franchise will also show you the strategies that are efficient, although it is not common to attract new investment.
To get to know and make use of all the possible ways of attracting investments, it is of the utmost importance to the health of the business. That’s because they show some great strategies to reduce the debt burden of early society, as well as to mitigate the bootstraping[8], as well as for the growth of the business through the collection of smart money[9].
Leonardo Theon School Law, bachelor of laws, with an emphasis in business law from the University Presbyterian Mackenzie (2012), which was registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2012). A post-graduate degree and an Expert in Corporate Law and Mergers and Acquisitions at the Law School of São Paulo da Fundação Getulio Vargas (2014) Master’s degree in Law and Political economics, Universidade Presbiteriana Mackenzie, brazil (2017), the author of many books and articles, a speaker, a teacher at the undergraduate, MBA, and Executive Education in the FIPECAFI, a member of the bar Association of São Paulo (AASP), and the Chairman of the State committee of the Business Law of the FEDERAMINAS. A founding member of the TM is Associated with it.
Anna Paula freely and responsibly on the Pine tree – a Lawyer with a degree in law, with a focus on civil law, from the University Presbyterian Mackenzie (2021), and which is registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2021). A post-graduate in Business Law from the Pontifical Catholic University of Rio Grande do Sul (PUC-RS). She is the author of the articles. A member of the State committee of the Business Law of the FEDERAMINAS. A lawyer for the Department and the Advisory have no Members.
[1] The capitalization of interest is in the reinversão in the profits of the company in its own operations, rather than distribute it to shareholders in the form of dividends to shareholders, raising the capital stock and as a result, the value of the shares. [2] The capital stock shall consist of amounts received by the company and that you are not carried forward by the result of the recipes, which relate to the amounts allocated to the strengthening of the capital, without being as the counterparts of any of the company’s efforts in terms of delivery of the goods or for the provision of services to you. Refer to it as such in the reserves, the premium on issue of shares, the sale of the founder shares and the warrants. These are all capital transactions with owners. GELBCKE, Ernesto Rubens; SANTOS, Ariovaldo from IUDÍCIBUS, Sergio de; MARTINS, Eliseu. the Manual of Accounting-a Corporate. 3rd ed. São Paulo: Atlas, The Latest In 2018. p. 383-384. [3] To find out more, please read: if there Carf examines the taxation of the capital gain on the issuance of the shares and the shares [4] Concerns ADOPTED in the operations carried out by a financial institution or factoring”s between a natural person and a legal entity or between legal entities, they have swapping of currencies, which could lead to the transaction of insurance made by the insurance companies, that are related to the values, or the u.s. securities and exchange commission; and that involve financial assets, gold and the resource exchange. The Board of Tax appeals (“CARF”), pursuant to article 19, And to the Act no. 10.522/2002, it held that the mere fact of financial flows between companies of the same economic group is not a “mutual-financial and away from the impact of the financial operations tax (IOF/credit to the Credit of the operation. In this case, the Class took the view that the burden of proof that it is the nature of the loan financial is the responsibility of the supervision, which for this purpose should be to effectively carry out audits of operations, and to demonstrate that the characteristics of the type of the contract are to be found in the present case. In this way, it is not just the mere fact that it was the cash flow of the company autuada, and the rest of the companies of its group, cost-effective, there is also the impact of the IOF tax Credit, because it ensejaria the taxation of the operation, for instance, which is not allowed in our legal system. In the absence of proof to the CARF was understood to terminate the requirement that the IOF tax Credit on such transactions in the current account. Court, n. 3201-009.809) [5] The interest payments on the contracts of the loan are to be taxed as a financial investment in fixed income securities. The tax will be levied at the date of the payment or credit to the income subject to withholding by the borrower, at the rate of: (i) to 22.5% (twenty-two-and-a-half per cent, for a period of up to 180 days only; and (ii) to 20% (twenty per cent, for a period of 181 days up to 360 days, and (iii) to 17.5% (seventeen and one-half percent for a period between 361 days to 720 days; or (iv) 15 percent to fifteen percent, for applications where a longer period of 720 days. (art. 1 of the Law no. 11.033/2004) and art. 46, § § I-IV, and c/c (art. 47 (III) of the Normative Instruction RFB no. 1.585/2015) [6] The society is not personified, who do not have a record in the registrar’s office or the board of trade, but they must have a tax ID (NORMATIVE INSTRUCTION RFB No. 2119/2022). With the exception of, well, the fact is that the taxation of the company in the account will be the same as that of a partner in the surrounding, as well as the inability of a partner, open, owner participant and the company, in the account of the participating operating system of the taxation of a Single Country. [7] Business corporation-is the one who carries on an economic activity is organized for the production and circulation of goods and services, which can operate either in the form of a general partnership, limited partnership, limited liability partnership, simple, and joint stock company. [8] The bootstraping is to start a business is only with his own money without any investment from a third party, or with little to no investment of any third party. [9] The smart money is it’s the one investment that is not the only values that will be collected, but it is especially the baggage that any investor can bring to the business and, because of its extensive and successful career.
Participation of the Foreigner in a Limited Liability Company in Brazil
Brazil has been a popular destination for foreign investment, and many entrepreneurs are interested in establishing companies in the country. In this context, the following question arises: can a foreigner participate in a company in Brazil?
Yes, a foreigner can participate in a company in Brazil. In this article, we will outline the necessary steps for the constitution or entry of a foreigner as a partner in a limited liability company (LTDA) in Brazil.
First, it is necessary to determine who the company’s partners will be, the capital that will be invested, the activity that will be carried out, the location, among others relevant to the business.
It is necessary (legal obligation) that the foreign partner appoint an individual resident in Brazil, as its legal representative in the country, granting this person powers to receive summons.
This power of representation must:
For both, the power of attorney, must be registered in the registry office of deeds and documents in Brazil and at the board of trade of the state in which the company its filed.
We emphasize that Brazil is a signatory of the Hague Convention, so that, for documents authenticated in other countries that are also signatories, it is enough for the notary to issue the document with the Apostille of the Hague Convention and consularization will not be necessary. However, the other steps mentioned above will continue to be necessary.
The personal documents of foreign members must be legalized in the country of origin (similar to a certified copy) and consularized at a Brazilian embassy or consulate located in the country where they are legalized. If the country is also a signatory of the Hague Convention, the same rule as for the power of attorney applies. Then, these documents must be translated by a sworn translator in Brazil and registered in a notary of titles and documents.
Foreign partners need to register with the Federal Revenue of Brazil, both as Individuals (CPF) and as Legal Entities (CNPJ). The registration of legal entities will be done through registration at the Central Bank of Brazil, through CADEMP within the system called: SISBACEN.
The initial address of the company’s headquarters needs to be defined and a lease agreement or another, as the case may be, entered into.
The first step is to carry out a search and query of the business name at the Board of Trade, in order to ensure that the name chosen for the company is available and can be used. Next, you need to determine the extent of the administrator’s powers. Finally, it is necessary to determine the address and object of the company, that is, where the company will be located and what its field of activity will be.
Hiring an accountant is mandatory for companies in Brazil. The accountant will be responsible for assisting in the preparation of financial statements, calculation of taxes, among other accounting issues.
After preparing and registering the articles of incorporation with the Board of Trade, it is necessary to register the company with the Brazilian Revenue Service. For this, it is necessary to provide information about the company and, after analyzing the documentation, the Brazilian Revenue Service will issue the CNPJ.
A registration with the Central Bank of Brazil (BACEN) for a limited liability company is necessary when the company intends to carry out operations involving exchange, such as imports, exports and transfers of funds between Brazil and other countries. Registration of investments between legal entities at BACEN (this operation is carried out by partners when they contribute capital to a company) is done through the System of Registration of Foreign Direct Investment (RDE-IED) and is mandatory for all companies that fall under the activities subject to this regulation.
To open a bank account in the name of the company, it is necessary to have the CNPJ and the articles of incorporation registered within the Board of Trade. In addition, it is important to verify the documents required by the bank, such as a proof of address, and the documents of the company’s legal representative.
Registration with the State Revenue Service is mandatory for companies that carry out sales of products or services subject to ICMS (similar to IVA). To apply for registration, it is necessary to present the documentation required by the state body, which may vary according to the state in which the company operates.
Registration with the Severance Indemnity Fund (FGTS) and the National Institute of Social Security (INSS) is mandatory for companies that have registered employees.
Municipal registration is mandatory for companies that have activities subject to municipal taxation, such as the Tax on Services of Any Nature (ISS). To apply for registration, it is necessary to present the documentation required by the municipal body, which may vary according to the city where the company operates.
Depending on the company’s activity, it may be necessary to obtain licenses and permits from specific bodies, such as:
In addition to the legal procedures, foreigners must also be aware of some limitations when it comes to investing in Brazil. For example, there are restrictions in certain sectors such as mining services, hydropower, and telecommunications.
Once regulatory procedures have been overcome, with Brazil’s economic growth, the incorporation of a limited liability company can be an excellent option for foreigners looking to start a business in the country.
Sabrina de Melo
Leonardo Theon de Moraes
Sample Letter of Objection to the breakdown of the Contributions to the Union
The Supreme Court was approved, in the 2nd last week 11/09/2023), the legality of the rate of compulsory contribution to charity for the trade unions, which is similar to the old tax of the union.
Thus, it is a constitutional institution that, by agreement or contract, collective bargaining, contributions, and assistance will be enforced for all employees in the category, even though it did not join a trade union, provided that it ensured the right to object.
So, right now, to any one trade union may call a meeting of shareholders each year, regardless of the number of workers, it will be possible to set up to charge a compulsory contribution of social services, both for members of the trade union as well as for non-union members.
In this sense, is not to focus on the discount rate as a compulsory contribution of assistance, if any, established by the union of the class, each employee is expected to explicitly express interest in collaborating with this help of assistance”.
Thus, it follows the template of the opposition at the breakdown of contributions to the trade union is to be used for all of the workers, especially those new to futures and contractors:
Sample letter of objection to the breakdown of the contributions to the union:
[inserir data]
Union [o]
Subject: HELP CONFEDERATIVA/CONTRIBUTION by the UNION of DISCOUNT and COMPULSORY
I [o], holder of license no. [o], regularly registered at the company [o], tax ID no. [o], with registered office at [o]no. [o], neighborhood [o], non-union, MANIFESTO of the OPPOSITION TO payroll deduction FOR PAYMENT of THE CONTRIBUTION CONFEDERATIVA, trade UNIONS, OR in-kind CONTRIBUTIONS ON BEHALF of THIS BODY. I missed that such action is warranted by the applicable legislation, in accordance with the law 13.467, de on July 13, 2017 (art. 579 and art. 611 (A), clause (XXVI).
Best regards,
________________________________
The signature of the employee
The corporate governance committee and the resolution of conflicts among the members of the differences between Limited liability Company
Business societies can be organized under several Corporate types, which gives partners the ability to choose the structure more consistent with their needs and objectives, according to the business model, growth strategies and legal preferences.
In Brazil, the most adopted corporate types are limited companies and corporations. Limited company is a corporate modality in which partners have their responsibility Restricted to the value of their contributions to the capital, protecting their personal heritage from eventual debts of the organization to the limit of their participation. The corporation, in turn, is a type of company in which capital is divided into shares, and the responsibility of shareholders is limited to the price of acquired shares.
In both corporate types pointed out above, Corporate governance plays an essential role for the development, stabilization and management of conflict in business. “Whether in large or small, publicly open or closed societies, with defined control or pulverized capital, either in family societies, or even startups, corporate governance – appropriate to each stage of social development – can be a fundamental instrument for preventing social conflicts ”(1).
Definition and dimensions of corporate governance
According to the Code of Best Practices of the Brazilian Institute of Corporate Governance (IBGC), corporate governance is “a system made up of principles, rules, structures and processes by which organizations are directed and monitored, with a view to generation of sustainable value for the organization, its partners and for society in general ”(2).
The principles of corporate governance apply to every business organization, constituting the basis on which good governance develops, which are: (i) principle of integrity, which aims at the continued improvement of organizational ethical culture; (ii) principle of transparency, which seeks Provide certain and accurate information on the financial and operational financial health of the business; (iii) principle of equity, performing fair and coherent treatment between partners and other stakeholders, in accordance with their rights, duties and needs; (iv) principle of accountability (liability), which corresponds to the duty of the organization to occupy Consider the social, economic and environmental impacts arising from the exercise of their business activity; and (v) principle of sustainability, which is dedicated to understanding that the protection of the financial viability of the organization is directly related to its interdependence with the economic, social and environmental realities that it is inserted (3).
Corporate governance is structured in agents, organs and the relationship between them. This structuring will be more or less complete depending on the size, the stage of evolution and the nature of the business of society, as well as its corporate type.
The agents – and, as a result, the organs – most involved with corporate operations are: (a) the partners, who make up the General Assembly; (B) Administration counselors and inspectors, which are part of the Board of Directors and the Fiscal Council; (c) the directors, who are the members of the Executive Board; and (d) members of advice advice (4).
The rules of governance, therefore, created by their agents, organize the structures (organs) of the organization, so that, through this set of practices, it seeks to optimize The performance of society as they safeguard the interests of the partners and the stakeholders.
Corporate governance and conflicts of interest between members
The harmony between partners is not only beneficial, but vital to the survival and prosperity of the business organization. Thus, the management and administration structure of society (governance) aims to avoid Or, at least to resolve the conflicts of interest between the partners in the best possible way.
Conflicts between partners are especially present in the dimensions of political and economic rights, which must be exercised in accordance with the legal and statutory guidelines to ensure the perpetrator of the long term society.
Regarding political rights, the ability to influence Strategic decisions and participate in company management are often at the heart of disagreements and controversies in corporate environments.
The right to vote, usually expressed in assemblies and meetings, allows the partners to express themselves about the operational procedures to be implemented in the organization. On the other hand, the power of control – whether it is distributed or concentrated -Refers to the ability to exert a predominant influence on administration, leading the guidelines and strategies to be adopted in society.
The incongruity between the aspirations and visions of the partners on the strategic decisions of society can generate strife. When the control power of society is concentrated, minority partners may feel that their interests are suppressed in social deliberations. In organizations where control is distributed, in turn, even though it is assumed that decisions are made through a more collaborative and inclusive procedure, there is also the possibility of arising decision impact that impact the cohesion of business planning.
Members selection for executive and administrative positions can be presented as a field Confidence for conflict hatching, especially when there are disputes related to the control of management and strategic direction of the company.
In addition, it is the subject of corporate conflicts the exclusion or exercise of the right to withdraw the partner. With regard to the right of withdrawal, disagreements sometimes arise in relation to the assessment and the payment of the partner’s shareholding dissident and the conditions on which the exercise of such right is admitted without impairing the company’s operational continuity.
In turn, the exclusion of the partner – whether judicial or extrajudicial – represents a forced dismissal of one of the partners of society. Beyond the relational differences between the parties, there are financial impacts – since the reduction of the capital of society It can undermine investments in the organization -as well as operational, which can lead to disagreement between the remaining partners in relation to the roles to be assumed and decision -making to allow the continuity of the operation.
Regarding equity rights, they are associated with economic benefits derived from the organization’s operations. Therefore, the distribution of profits, the transfer of quotas or actions and aspects related to business succession, which are themes often marked by corporate controversies.
Profit distribution is a fundamental right of partners. The disputes sometimes originate from disagreement regarding the perception of the value and contribution of each partner to the generation of profits obtained. This conception invariably It is confused with the lack of discernment between the partner and administrator’s roles in the organization, which have different functions and responsibilities. Thus, the disparity in expectations regarding the “correct” ideal fraction of participation in results occurs when there is a lack of well -defined guidelines for the remuneration of administrators and distribution of dividends.
Yet, being Of compensation for the partners, in particular in relation to limited companies, much controversy is installed with regard to the conflict between the concepts of profit x pro-labore, regarding the partner who plays the role of administrator. It is very common that, in the absence of clear rules to determine the amount to be paid due to the work commitment in the exercise of the administration, if Dissatisfaction for non -agreement regarding the criteria set (hours of commitment, productivity, percentage of the results earned, among others).
There are also disagreements between partners regarding the share of profit that will be destined for reserve and reinvestment in the organization itself. There are those who see the need to retain a significant part of profits to ensure growth of society, and others who advocate a more robust distribution of dividends.
Regarding the transfer of corporate participation, entry into society of a new partner, foreign to the operation, can significantly alter the dynamics, culture and management of a society. In this context, concerns arise about dilution of control and eventual changes in business strategies, which can result in significant friction, even threatening the continuity of the business.
Finally, business succession is also a very controversial theme. From the death, interdiction or mease of any partners, the admission of their successors, heirs or ex-spouse may endanger the continuity of management, the preservation of organizational culture and, as a result,, consequently, Sustainability of the company.
The interests of the remaining partners can collide with those of the heirs, successors or former spouses, particularly if the latter do not have a prior involvement or knowledge of the business until the moment of succession.
In this scenario, solid corporate governance is fundamental to ensure that the rights of all partners are respected ( principle of equity ) and that decisions made reflect a equitable perspective of the business.
The governance structure, represented by agents and organs, “must ensure that the organization has clear, effective, implemented and properly disseminated policies and processes” (5) to identify and treat social conflicts. As mentioned above, the most present agents and organs and involved in the organization are:
(A) Members, which makes up the General Assembly:
The partners are committed to ensuring the interests of society and, to this end, must deliberate responsibly on matters elementary to proper organizational functioning. The General Assembly or the Meeting of Partners is the moment when the partners, through the vote, have a voice to express your views and decide substantial questions of the organization.
Thus, the establishment, by means of agreements, of clear policies regarding voting procedures are fundamental to the balance of the business.
(b) Counselors, members of the Board of Directors
Counselors in the Board of Directors ensure that operations and strategies of society are aligned with the interests of the partners and the purposes of corporate integrity. The Board of Directors “must be responsible for determining the strategic objectives, directions and risk profile of the organization, (…) related to its culture and identity” (6).
In view of this, it is paramount that the board of directors promote transparency in the decisions and actions of the company. The clear communication of corporate strategies and results strengthens the confidence between partners and other stakeholders, mitigating the perception of any conflicts of partial interests or management.
(c) Counselors, members of the Fiscal Council
The Fiscal Council has “the responsibility to verify that the organization is in Compliance with its principles and values, reflected in internal policies, procedures and standards, and regulatory laws and devices ” (7). In their supervision work, tax counselors must understand the strategy and risks to form opinion on the financial results and statements presented by the Board of Directors to the members in the Assembly General.
(D) Members of the Advisory Committees
Advisory committees are bodies advising the Board of Directors in the “ Control on the quality of financial statements and internal controls, aiming at the reliability and integrity of information to protect the organization and stakeholders” (8). The most common committees are: (i) audit; (ii) risks; (iii) sustainability; (IV) Ethics and Compliance.
(E) Directors, members of the Executive Board
“The board is the executing body of the end of business activity” (9). The directors are responsible for the implementation of all the company’s operational and financial processes, executing the strategies approved by the Board of Directors.
Furthermore, The contract or bylaws must comply with the purpose of establishing the main rules of operation of the company, with the implementation of solid corporate governance practices, which serve to direct, monitor and encourage the organization, minimizing conflicts and protecting the various stakeholders (10).
Rule differences between limited companies and societies Anonymous
Although often convergent legal structures and instruments, they are in some different aspects of their application to limited societies and corporations, especially in relation to political and economic rights:
Political rights present the following distinctions in relation to voting rights, control, withdrawal and exclusion:
Economic rights present the following distinctions in relation to the corporate types in question:
From the above analytical frameworks, the differences of legal rule to the most sensitive subjects to the relationship between quotists/shareholders are evidenced by comparing corporate models of limited and society by action.
Conclusion
In the light of the main challenges faced by the partners, the structural and legal differences between the Limited societies and stock societies, corporate governance, the reason for the peculiarities of each corporate type, will be exercised through their agents and instruments in different ways. The adequacy to the positive and negative normative specificities of each business type is essential to achieve the best effectiveness.
The differences and controversies pointed out throughout this Article may be mitigated or renewed through legal instruments, such as: (i) the formulation of rules and guidelines provided for in the contract or status, which will have about the functioning of society, with the adoption of corporate governance practices; (ii) the celebration of the agreement of quota holders/shareholders; (III) among other measures that can Contribute to the improvement of management, organization and business development.
Regarding conflicts related to political rights, corporate governance agents will have a vast guiding legal structure at their disposal to find solutions to controversies between the partners. Otherwise, in the context of limited societies the framework Legal is limited, often demanding the challenge of establishing conflict resolution criteria at a time contemporary with its confrontation.
Given the nature of the relations between the partners, in limited societies, based on interpersonality, the performance of the Board of Directors, will face, in theory, greater challenge to objectify the controversies and search for solutions based on Data, since the relationship between partners often transcends the simple merchant objective. On the other hand, in stock companies, as a rule, solutions will be more objectively based and will find a greater number of legal provisions at their disposal, since the normative scope provided for in Law no. 6.404/76. It is much broader.
Still in the exercise of political power, the Board of directors facing greater challenges in limited companies, since the proximity with which partners exercise their right to vote is much greater and representative than in corporations. It is important to remember that, in many cases, the constitution of a board of directors in limited companies is relatively recent.
In another context, however, in societies Limited, the Board of Directors, when dealing with a more restricted membership base, has greater ease and agility in decision making, while in corporations, more analytical decisions are often required and based on robust data, due to the need to justify actions and strategies in the face of a wide number of shareholders and regulators.
The nuances mentioned above are also the subject of attention to the members of the Executive Board, in the execution of the organization’s financial and operational procedures. In limited societies, such as the partners themselves may be involved in business management, organization management is closer and personal. Governance is more flexible and execution of strategies are performed with a greater degree of informality, depending on the agreement established between the partners.
On the other hand, in corporations, the board is farther from shareholders and operates with a more rigorous and formalized governance structure. The directors are in charge of managing the company’s operational and strategic aspects, aligning with the vision and direction established by the Board of Directors and the expectations of shareholders.
Regarding economic rights, corporate governance, through its agents and organs, will face challenges in both limited structures and stocks by action. In the first, the controversies will be oriented to the rules and criteria aimed at the distribution of profits (sometimes disproportionately) and pro-labore receipt of the partner Administrator, while in Mondays the challenges are much more associated with the resource allocation rules: percentage of dividends to distribute, allocation in profit reserve accounts, etc.
Regarding the circulation of quotas or actions, either alienation or in business succession, in both corporate types it is common to exist disagreements between partners/shareholders, as it is necessary Establish rules on the right of preference and settlement of corporate interest, which are applicable to each corporate structure.
In short, corporate governance, for its better effectiveness, should be aware of the context, structure and normativity preceding its implementation in a given organization. It is necessary to establish distinct strategic and tactical planning For each organization, taking into consideration its corporate type and the challenges it intends to resolve.
Bibliographic references
(1) GALLO, Giovanna Mazetto. CHIACHIO, Rafaella. The importance of corporate governance in preventing corporate conflicts. December 23, 2022. Available at: https://www.migalhas.com.br/coluna/migalhas-connsensuals/379078/importancia-da-governanca-corporativa-na-prevencao-de-conflitos . Accessed October 3, 2023.
(2) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 17, 2023.
(3) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 19, 2023.
(4) SILVA, Edson Cordeiro. Corporate governance in Companies: Practical Guidance for Guidance for Shareholders, Investors, Administration and Fiscal Counselors, Auditors, Executives, Managers, Market Analysts and Researchers. 3rd ed., Sao Paulo, SP. Atlas Publisher, p. 32, 2012.
(5) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 21, 2023.
(6) Institute Brazilian Corporate Governance – IBGC. Corporate risk management: evolution in governance and strategy. Sao Paulo, SP. IBGC, p. 26, 2017.
(7) Brazilian Institute of Corporate Governance – IBGC. Corporate risk management: evolution in governance and strategy. Sao Paulo, SP. IBGC, p. 27, 2017.
(8) Brazilian Institute of Corporate Governance – IBGC. Management of Corporate risks: evolution in governance and strategy. Sao Paulo, SP. IBGC, p. 28, 2017.
(9) Brazilian Institute of Corporate Governance – IBGC. Code of best corporate governance practices. 6th ed. Sao Paulo, SP. IBGC, p. 53, 2023.
(10) ANDRADE, Adriana. ROSSETI, José Paschoal. Corporate governance: foundations, development and trends. Altas Publisher. 7th ed. São Paulo, 2014.
Julia Oliveira Andre Teixeira
Lawyer, law graduate from Faculties Milton Campos (2019), registered with the Brazilian Bar Association, Minas Gerais Section (OAB/MG) (2019). Specialist for the L.LM Business Law Program by IBMEC (2021), MBA in high performance law by PUC Minas (2022), expert on contractual law from the Getúlio Vargas Foundation (FGV-RJ) (2023). Author of articles. Member of the Commission of Corporate Law of the OAB/MG (2022), member of the Center for Studies of Lawyers Companies (CESA), Executive Secretary of the State Council of Commercial Affairs of the Federaminas. Advisory Lawyer of Portugal Vilela Advogados.
Leonardo Theon de Moraes
Lawyer, Graduated in Law, with emphasis on Business Law, from the University Presbyterian Mackenzie (2012), registered with the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Post Graduate and Specialist in Business Law from the São Paulo Law School of the Getúlio Vargas Foundation (2014), Master in Political and Economic Law from the Mackenzie Presbyterian University (2017), book and articles author, speaker, undergraduate professor, MBA and Executive Education At FIPECAFI, a member of the São Paulo Lawyers Association (AASP), a member of the International Bar Association Business Law and Fuse Committee, member of the São Paulo Lawyers Association (AASP) and president of the Federaminas State Council of Commercial Law. Founding partner of TM Associados. Founding partner of TM Associados
It is void Postal Service of natural person if warrant was received by third party
The understanding of the 3rd Class of the STJ is that the possibility of the citation letter being received by a third person only occurs when the Citing is a legal entity.
The rapporteur, Minister Marco Aurélio Bellizze, explained in the vote that the citation of an individual by mail occurs with the delivery of the citation letter directly to the citing, whose signature must appear in the respective receipt notice, under penalty of nullity of the act, in accordance with the provisions of CPC/15.
Bellizze pointed out that the fact that the postal Service was sent to the commercial establishment where the appellant carries out its activities is not sufficient to depart from the procedural norm, especially since there is no way to be sure that the defendant has actually taken notice of the injunction filed against him.
“The possibility of the citation letter being received by a third person only occurs when the Citing is a legal entity, in accordance with the provisions of paragraph 2 of Article 248 of the CPC/2015, or in cases where, in condominiums or allotments with access control, the delivery of the warrant is made to the official of the ordinance responsible for receiving the correspondence, as established in paragraph 4 of said legal device, hypotheses, however, that do not subsume the present case.”
Marcus Aurelius Bellizz
See the decision:
Access decision
CPC, CLT and CF now indicate jurisprudence in the articles!
The CPC, CLT and CF have been updated on the plateau website!
Now it is possible to find the jurisprudence of the articles by clicking on the “🔨” little hammer” next to the device.
This is another measure of cooperation between the government and the judiciary to integrate three databases with information on the Constitution, ordinary law and jurisprudence!
And what did you think??
#advocacia#tmlaw#tmassociados#direito#jurisprudencia#clt#cpc#cf88#advogado#oab