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Corporate Law / M&A 15/07/2016
Annual and Five-Year Foreign Capital Census in Brazil

The term to present to the Brazilian Central Bank the data for the census of foreign investments in Brazil has started. This year the Central Bank has changed the rules related to the census: now it will occur both annually and every five- year period subject to the criteria set in Circular 3.795/2016.

The five-year census is intended to reflect the base dates ending in zero (0) and five (5) and the information must be rendered by legal entities domiciled in Brazil based on their state of affairs as of December 31 of the relevant year. The annual census, in turn, concerns the base date of all and every year, and the information should be presented based on the company’s situation as of December 31 of the relevant year.

The criteria defining the obligation of presenting the census are summarized in the table below:

FIVE YEAR CENSUS ANNUAL CENSUS
To be submitted based on the company’s position as of December 31st of years ending in 0 or 5. ​To be submitted based on the company’s position as of December 31st of the preceding year.
Should be presented by companies domiciled in Brazil , which have foreign direct investment of any amount in their capital stock. Should be presented by companies domiciled in Brazil with non-resident direct investment of any amount in their capital stock and simultaneously with net equity equal to or above one hundred million US dollars (US$ 100,000,000.00).
​Should presented by companies domiciled in Brazil that are debtors of short-term foreign credits (payable up to 360 days) granted by non-residents in amounts equal to or above one million US dollars (US$1,000,000.00) based on the rate   of December 31st. ​Should be presented by companies domiciled in Brazil that are debtors of short-term foreign credits (payable up to 360 days) granted by non-residents in amounts equal to or above ten million US dollars (US$10,000,000.00) based on the rate   of December 31st
Should be presented by investment funds with non-resident shareholders through their trustees. ​Should be presented by the investment funds with non-resident shareholders and net equity equal to or above one hundred million US dollars (US$ 100,000,000.00) through their trustees.
​To be presented from July 01 and August 15 of the following year. ​To be prenseted from July 01 and August 15 of the following year.
​In 2016, the census must reflect the base date of December 31, 2015 (according to the rule on years ending in 5). In 2016, the census must reflect the base date of December 31, 2015.​

 

Circular 3.795/16 also reads that the following are exempted from submitting information on the census: (i) individuals; (ii) government bodies; (iii) legal entities debtors to foreigners on lendings granted by financial institutions with head office in Brazil; and (v) not-for-profit entities funded by non-residents.

Pursuant to Resolution 4.104/12 of the National Monetary Council (Conselho Monetário Nacional), the failure to submit  information, the misrepresentation or incomplete information, or late delivery  of the census o are subject to fine according to the criteria below:

a) Late delivery : Fine of R$ 25,000.00 or 1% of the amount subject to reporting, whichever is the lowest;

b) Inaccurate or incomplete information: fine of R$50,000.00 or 2% of the amount to which the inaccuracy relates, whichever is the lowest;

c) Failure to submit: fine of R$125,000.00 or 5% of the amount subject to reporting, whichever is the lowest;

d) Misrepresentation: fine of R$250,000.00 or 10% of the amount concerning the information that should have been given, whichever is the lowest.

We are remain at your disposal to provide any additional information and to help you fill out and submit the foreign capital census.

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INDEX

Annual and Five-Year Foreign Capital Census in Brazil

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