Legal Insights From Brazil to Start Your Week

Capital Markets | 5 Key Points For Companies and Founders About IPO Process in Brazil

2021 has been marked by the return of initial public offerings (IPOs) in the Brazilian market, with over 50 transaction until October.

From fintechs to tech and agribusiness companies, there has been a solid return of offerings flow that should remain in 2022.

Below are 5 key points about IPOs that companies and founders typically question:

1. Which Company Size Can Do IPO in Brazil: B3, the Brazilian stock exchange, has 5 listing segments, being Bovespa Mais, Bovespa Mais Level 2, Novo Mercado, Level 2 and Level 1. They cover, like Bovespa Mais, from small and medium-sized companies that wish to access the market gradually, to the Novo Mercado, those that are more consolidated and that have a differentiated corporate governance standard;

2. Pre-IPO Process Phase: at this stage, the company’s Corporate Governance is evaluated and improved, with (i) the creation of board of directors with the participation of independent members; (ii) reform of bylaws; (iii) election of investor relations officer; (iv) contracting an external audit; (v) entering into a shareholders’ agreement; (vi) implementation of executive compensation programs; (vii) creation of integrity policy and code of ethics;

3. The IPO Process: (i) the registration of a publicly-held company with the Brazilian Securities and Exchange Commission (CVM) will be carried out, so that the company is allowed to trade its shares on the stock exchange; (ii) registration of the public offering of shares before the CVM and (iii) listing procedures before B3;

4. Which Investors Will the IPO Focus On? The IPO may have (i) an offer registered in Brazil only, (ii) registered in Brazil with efforts to sell abroad, (iii) an offer with restricted efforts in Brazil and abroad, and (iv) an offer registered in Brazil and abroad;

5. Documentation of the IPO: the legal instruments that involve the public offering of shares are diverse, including (i) the prospectus (in Portuguese and, for an offerings abroad, in English), being the main document of the offering; (ii) Brazilian and international distribution contracts, which deal with the relationship between the company and the institutions coordinating the offering; (iii) corporate acts that approve the offering, the IPO and the listing; and (iv) notice to the market, announcements of opening and closing of the offer; among others.

The items above address doubts that companies and founders, from small to large, have on going public and public offering of shares, a movement that should remain in 2022.

Tax | Interest on Net Equity (“JCP”) Payout in Brazil and Its Deductibility Without Time Restrictions May Become Opportunity for Companies

Brazilian companies that pay Interest on Net Equity (known as “JCP”) to shareholders and stockholders are allowed to deduct the amounts paid from gross income without time limitation, according to a recent ruling rendered by the Brazilian Federal Administrative Tax Court (CARF). It is a very important “overruling” favorable to taxpayers. 

JCP subject to income tax at a flat tax rate of 15% (general rule) or 25% (if the beneficiary is a nonresident company or individual located in a blacklisted jurisdiction – tax heaven). From an objective point of view, the advantage to companies is that that JCP is deductible from Corporate Tax (IRPJ) and Social Contribution on Profits (CSLL) calculation of basis, which combined can reach a rate of 34%. 

Just recently, it has been recognized that the deductibility has no time restrictions because there is no such provision of the law. In a more exact way, the deductibility of JCP from gross income includes interest of previous periods. There are indeed legal requirements and deductibility limits are provided, but they there is no time restriction. 

It is a very favorable decision to taxpayers, especially because it strengthens the principle of tax legality and legal certainty, recognizing that the time limitation established by the Federal Revenue of Brazil (RFB) in order to discipline the matter is a restriction that is not provided by the law and, therefore, it is illegal.  

It is worth noticing that this “overruling” by the Brazilian Federal Administrative Tax Court is related to changes of procedure rules in the administrative proceeding. Everyone responsible for decision-making on behalf of companies, especially in Brazil, must follow legislative changes, including procedure changes, and the administrative and judicial decisions.

Via Feijó Lopes Advogados 

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