Setting up a company in Brazil as a foreign investor


International Contracts

Setting up a company in Brazil as a foreign investor

16 April 2020

According to the World Economic Outlook published by the International Monetary Fund, Brazil is currently the 9th largest economy in the world. This position tends to only improve, as the projection for 2020 shows that economic activity in the country should gain traction throughout this year.

Considering that this prospective scenario is prone to attracting foreign investment into Brazil, this contribution shall provide an overview of the procedure to establish a company in Brazil with a specific focus on the Sociedade de Responsabilidade Limitada, the Brazilian version of a limited liability company, and to that end, addresses the following relevant aspects:

  • general requirements for starting a business in Brazil, both those applicable strictly to foreign investors (see item I, Requirements for foreign investors ) and those pertinent to all companies set up in Brazil (see item I, General Requirements);
  • overview of the two most common types of legal entities in Brazil: Sociedade de Responsabilidade Limitada and Sociedade Anônima (see item II);
  • the procedure for starting a Sociedade de Responsabilidade Limitada in Brazil, which is the Brazilian version of a limited liability company (see item III);
  • special visa requirements for those investors who may be interested in moving to Brazil (see item IV); and
  • specific areas of business in which foreign investors are subject to certain restrictions due to their relevance to public interest (see item V).

I. REQUIREMENTS FOR STARTING A COMPANY IN BRAZIL

Requirements for Foreign Investors

When starting a business in Brazil, foreign investors are subject to a special procedure before Banco Central, the Central Bank of Brazil, which is not required for domestic investors.

Foreign investment is subject to registration before the Central Bank of Brazil, which controls the entrance of any foreign capital into Brazilian borders. The following steps are mandatory:

  1. Signing up to Sisbacen – Sistema de Informações do Banco Central

Sisbacen is a data system used by the Central Bank of Brazil to obtain relevant data and provide it to concerned governmental entities. Access to Sisbacen is granted strictly to residents in Brazil. Therefore, non-residents need a resident of Brazil as their representative.

Registration can be done online here.

The login details from Sisbacen are needed for submission of the CDNR (see below).

  1. Cadastro Declaratório de Não Residente – CDNR

After signing up to Sisbacen, the next step will be to register the foreign investor. CDNR is a mandatory registration for non-resident foreigners interested in investing in Brazil.

Registration can be done online here.

  1. Registro Declaratório Eletrônico – RDE

Once the investor is registered, it is time to register the investment itself. This can be done through the so-called “RDE – Registro Declaratório Eletrônico”, the Central Bank’s online registration tool to control all foreign capital that goes into the country.  There is a specific category of registration for Foreign Direct Investment under the name “RDE-IED”.

  1. Census of Foreign Capital

It is mandatory for certain enterprises to participate in surveys for the Census of Foreign Capital in Brazil. Currently, there is an annual census, which covers:

  • Companies with any direct participation of non-residents in their capital and whose shareholder’s equity is equal or greater than US$ 100 million.
  • Investment funds with nonresident shareholders and shareholders’ equity equal or greater than US$ 100 million.
  • Companies with a total debt balance of short-term trade credits (payable up to 360 days) with nonresidents equal to or greater than US$ 10 million.

In addition, there is also a five-year census which covers:

  • All companies with any direct participation of non-residents in their capital
  • Investment funds with non-resident shareholders
  • Companies with a total debt balance of short-term trade credits with non-residents equal to or greater than US$ 1 million.

The surveys may be accessed online upon registration here.

General Requirements

In addition, further requirements are applicable to all companies in Brazil, regardless of the type of legal entity they constitute or whether they are started by foreign or domestic investors.

Regardless of the nationality of the investor, opening a company in Brazil requires the following preliminary issues to be addressed:

  1. Registered Address

The company will need a registered address for tax purposes: virtual addresses are not accepted.

  1. Local Company Adminstrator

There must be a local company administrator: the legal representative of the company in Brazil – who might not necessarily be an owner of the company – must either be a Brazilian citizen or have a permanent Brazilian visa. If the foreign investor has the intention of applying for an investor visa, they must appoint an interim Company Administrator and, as soon as the investor visa is granted, its holder may be appointed as Company Administrator. The Power of Attorney must be notarised in Germany, translated to Portuguese (if applicable) and submitted to Hague Apostille (which confirms the authenticity of the document in all signatory States to the Hague Convention abolishing the Requirement of Legalisation for Foreign Public Documents of 5 October 1961, among which are Germany and Brazil).

  1. Company Name

The must fulfill the following requirements:

  • Correct indication of activities the company will be engaged in;
  • The company name must be original and must not conflict with names already taken by any other companies operating in the same business industry in the same region;
  • Indication of the type of legal entity (e.g. “S/A”, “Ltda.”);
  • No immoral words or expressions may be used.
  1. Boards of Trade in most states have online tools to check the availability of company names. E.g.:

The availability of the company name will be checked during the verification of feasibility (see “Verification of Feasibility” under item III.2).

  1. Trading names or nome fantasia, trademarks

Trading names (nome fantasia) are subject to optional registration in the Articles of Incorporation.

The registration of trademark is also optional. Consultation of availability of trademarks can be done online here. The request for registration of trademarks is available here.

II. TWO TYPES OF LEGAL ENTITIES

Sociedade de Responsabilidade Limitada (Ltda) | Limited Liability Company

Equivalent to the German Gesellschaft mit beschränkter Haftung (GmbH), this is the most common type of legal entities in Brazil and has less legal formalities than a corporation.

Its main characteristic is the limitation of responsibility of each quotaholder to the amount of their quota (pursuant to Article 1052 of the Brazilian Civil Code). Quotaholders who are not national residents must have legal representatives in Brazil.

A Sociedade Limitada is incorporated through Articles of Association, which must be duly registered before the Board of Trade. The company cannot be registered or sell its quotas in the stock exchange.

Sociedade Anônima (S/A) | Stock Corporation

Equivalent to the German Aktiengesellschaft (AG), Sociedade Anônima is often the preferred legal entity type for large companies interested in having different mechanisms to obtain funds, such as the issuance of debentures or of new shares.

The shareholders’ liability is limited to the payment of the shares to which the shareholders have subscribed. If foreign, the shareholders of the corporation must have legal representatives in Brazil.

A Sociedade Anônima may either be in the form of an “aberta” (a publicly traded corporation) or “fechada” (if its shares and securities are not available to the general public), the former being subject to the regulation of the Brazilian Securities Commission (CVM) and to independent statutory audit.

In any case, corporations are required to file their financial statements to the Trade Board, as well as to publish them in the Official Gazette and in any newspaper of wide circulation.

The Corporate Capital must be fully subscribed and at least 10% must be deposited in a bank for the purpose of the incorporation. In addition, at least 5% of the yearly net income shall be set aside in a legal reserve until it reaches 20% of the Corporate Capital.

III. PROCEDURE FOR SETTING UP A SOCIEDADE LIMITADA

Articles of Incorporation

The Department of Company Registration and Integration, responsible for the coordination of all Boards of Trade in Brazil, sets the requirements for the Articles of Incorporation (Contrato Social).

The Articles of Incorporation must be drafted and duly signed (either digitally or physically, depending on the State’s Board of Trade procedure) by a lawyer. An exception is made for small business, i.e. if the company is expected to have an annual turnover of less than R$ 4,800,000.00 (the equivalent to roughly ‎ 950,000.00).

The mandatory content includes:

  • Name, nationality, marital status, profession, CPF number (Brazilian equivalent to social security number), ID number and place of residence of the partners who are natural persons, as well as denomination, nationality and headquarters of the partners who are legal entities, in which case it shall also include the representatives’ personal details;
  • Company name, purpose (objeto social), headquarters and duration;
  • Initial investment (in Brazilian Real) broken down in quota for each partner;
  • Obligations of each partner whose contribution is made in form of services;
  • Natural persons responsible for the administration of the company, as well as their respective powers and attributions.
  • Participation of each partner in the profits and losses.
  • Jurisdiction: whether judicial or arbitration. If judicial, which court.

Verification of Feasibility (Consulta de Viabilidade)

This verification is obtained at the Board of Trade. The following information will be required:

  • Company name (in this moment the availability of the company name will be confirmed);
  • Corporate type: simple or entrepreneurial (for more details, see “Registration” below under item III)
  • Company size: companies are grouped into different categories based on their annual turnover
  • Company address
  • Name, nationality, marital status, profession, CPF number (Brazilian equivalent to social security number), ID number and place of residence of the partners who are natural persons, as well as denomination, nationality and headquarters of the partners who are legal entities, in which case it shall also include the representatives’ personal details
  • CNAE – business activities
  • Company purpose (objeto social)

Obtaining the Company Taxpayer Identification Number (Cadastro Nacional de Pessoa Jurídica – CNPJ)

The necessary documents for the obtainment of the Taxpayer Identification Number are:

  • Basic Document for Entry (DBE), which may be generated online;
  • Power of Attorney, if the DBE was signed by an agent.

Registration

Limited liability companies are usually registered before the Board of Trade. However, there is a caveat for so-called “simple companies”.

a) “Simple companies”

However, in case the company’s core activity is exercised by the partners, such as in partnerships between physicians, lawyers and dentists, the company will be considered “simple”. “Simple companies” are subject to registration before Public Notaries of Civil Registry of Legal Entities (Cartório de Registro Civil de Pessoas Jurídicas).

For registration before public notaries, the following documents are required:

  • Registration form
  • 2 notarized copies of the Articles of Incorporation
  • Basic Document for Entry (Documento Básico de Entrada – DBE)
  • Verification of Feasibility (Consulta de Viabilidade)
b) “Entrepreneurial company”

On the other hand, if there is a structured economic activity and a business purpose, the company will be considered as an “entrepreneurial company”. In this case, the registration is to be done before the Board of Trade. This step usually takes around one month, but its duration varies from state to state.

For registration before the Board of Trade, the necessary documents include:

  • Company registration form;
  • Proof of payment of company registration fee (DAE) of around R$ 250,00 (roughly ‎ 50);
  • Confirmation of availability of the company name (see under item I, General Requirements);
  • Articles of Association translated to Portuguese by a certified translator (if applicable);
  • Notarised copy of the partners’ IDs;
  • Proof of residence of the company administrator or partners;
  • Statement informing that the partners are not prevented by law or by judgment from owning a company;
  • Verification of Feasibility;
  • Basic Document for Entry;
  • National Registration File (Ficha de Cadastro Nacional – FCN);
  • Power of Attorney, if any of the aforementioned documents were signed by an agent.

As a result of the registration, the company will receive a Company Registration Identification Number (NIRE).

Obtaining a License of Operation

This license is obtained before the municipality of the city where the company will have its place of business and represents the final authorization for the business to start operating. The requirements to obtain a License of Operation vary from one city to the other, but the most commonly required documents are:

  • Formal request of registration;
  • Real estate clearance certificate;
  • Statement of responsibility;
  • Articles of Association registered at the Board of Trade;
  • Confirmation of the CNPJ registration;
  • Notarised copy of the Identification Document for the Company Administrator;
  • Proof of payment of the aforementioned registration fee (DAE) of currently around R$ 250,00 (roughly ‎ 50).

Other Licenses

In some cases, a company might be required to obtain additional licenses, such as a Sanitary Surveillance License or an Environmental License.

State Registry

This is the registry for payment of taxes within the state in which the company is going to operate. While the procedure might differ from state to state, the SINTEGRA (Integrated Data System of Interstate Operations for the Sale of Goods and Services) website refers to the individual system from each state.

The necessary documents to register usually include:

  • Registration certificate from the Board of Trade;
  • Articles of Association;
  • Confirmation of CNPJ registration;
  • License of Operation;
  • ID and proof of residence of all partners.

Authorization for Issuing Invoices (AIDF)

Registration in some states may be done online. The website for registration and required documents vary from state to state. The data is submitted to the assessment of the Treasury Department. In case of approval, the system generates an AIDF number and indicates a link for the printable AIDF. In case the request is rejected, the request will be reopened for modifications.

Registration before the Social Security Institute (INSS)

This registration must be done within 30 days after the company starts to operate. The procedure is simple and requires only the CNPJ number of the company.

IV. INVESTOR VISA

Overview

Although it is not necessary to reside in Brazil in order to start a company there, investors who have the intention of moving to the country may apply for an investor visa.

The investor visa not only grants permission to permanently work in Brazil, but also makes one suitable to act as a company administrator. The holder of an investor visa is also eligible for the RNE (National Registry of Foreigners), an identification document for foreign residents.

For a German investor, the eligibility requirement is investing currently at least R$ 500,000.00 (equivalent to roughly 100,000.00) either in a pre-existent or a new company. Therefore, the visa is to be required only after the company is set up.

 

Required Documents

The required documents include:

  • Passport (expiring in no less than 6 months)
  • One biometrical photo not older than 1 year
  • Original birth certificate with the Hague Apostille and a simple copy
  • Visa online application form
  • Proof of residence of all places where the applicant has lived in the last 12 months (original and simple copy)
  • Articles of Incorporation
  • Proof of registration of foreign direct investment on Sisbacen.
  • Business plan
  • Proof of payment of individual migration tax and, if applicable, proof of the legal entity’s payment of income tax in the previous fiscal year.
  • Police Clearance Certificate from all countries where the applicant has lived in the last 12 months (translated if applicable)
  • Proof of payment of the visa fee

In case of any queries, residents of Berlin may contact the Brazilian Embassy in Berlin at visa.berlim@itamaraty.gov.br.

V. LIMITATIONS FOR FOREIGN INVESTMENT IN BRAZIL

Limitations regarding Certain Industries

Due to public interest concerns, the Brazilian Constitution as well as various specific laws/regulations establish restrictions to the economic sectors in which companies fully owned by foreign investors may operate:

  • Journalism, sound broadcasting, or sound and image broadcasting companies shall be owned exclusively by native Brazilians or those naturalized for more than ten years, or by legal entities incorporated under Brazilian Law and headquartered in Brazil (pursuant to Article 222, CFRB).
  • Air transport: concession or authorization for public air transportation services shall only be granted to legal entities constituted under Brazilian Law and headquartered in Brazil (pursuant to Article 181, Brazilian Aeronautical Code)
  • Private security services: property and administration of companies specialized in private security operating in Brazil is denied to foreigners (pursuant to Article 11, Act 7102). However, the Private Security Statute proposed in the Federal Act Project 4238, which is currently pending approval of the Brazilian Senate, limits the restriction of foreign participation to private security companies specialized in transportation of cash or goods.
  • Road cargo transport: companies must be headquartered in Brazil (pursuant to Article 2, §2, I, Act 11442)
  • Research and extraction of mineral resources as well as production of hydraulic power: restricted to Brazilian citizens or companies incorporated under Brazilian Law and headquartered in Brazil (pursuant to Article 176, §1, CFRB)

Geographical Limitations

On the borderland strip, companies dedicated to i) industries of interest to the national security; ii) research, extraction or exploitation of mineral resources (with the exception of those with immediate application to civil construction); or iii) the colonization and land division, are subject to the following requirements:

  • 51% of the capital must belong to Brazilian citizens;
  • 2/3 of the workers must be Brazilian citizens;
  • The Administration or Management must be composed of a majority of Brazilians (pursuant to Article 3, Act 6634).





About the author

Carolina Lana, LL.M.

Carolina Lana is a qualified lawyer from Brazil and LL.M. candidate in International Dispute Resolution at Humboldt University of Berlin. She has over two years of experience in commercial arbitration and litigation working in boutique law firms in Brazil.


About Wagner Arbitration

The law firm WAGNER Arbitration has its offices in Berlin and specializes in dispute resolution with a focus on arbitration. In addition, the firm offers comprehensive counseling services related to domestic and international business disputes and transactions.

Disclaimer

This Journal and its contents serve informational purposes only and do not replace individual legal advice. Please contact us, should you have any inquiries or comments.

The answers provided in this questionnaire are as of April 2020. Please note that the relevant legal provisions may be subject to amendments.