Registration of Tainted Capital with the Brazilian Central Bank23/07/2012
On March 5, 2007, The Brazilian National Monetary Council (“CMN”) issued Resolution No. 3,447 establishing the rules for registration of tainted capital with the Brazilian Central Bank – BACEN (considered to be all unregistered foreign capital invested by non-residents in Brazilian corporate entities with BACEN, which is not subject to any other forms of registration), in addition to providing applicable penalties in connection thereto. BACEN issued regulations for Resolution 3,447 through BACEN Circular No. 3,344 of March 7, 2007. In light of the aforesaid rules, tainted capital must be registered, as at March 19, 2007, with the Electronic Declaratory Registry – Foreign Direct Investment Module (“RDE-IED”) of the Central Bank Information System (“Sisbacen”), in Brazilian Reais, pursuant to the following rules: a) if the financial participation supplements a prior foreign investment registered in the same receiving Brazilian corporate entity, the registration of the remaining participation (tainted capital) must be effected under the same RDE-IED code; b) if the participation constitutes the first registration (no foreign capital has been registered by the non-resident in the receiving company), the non-resident and the receiving company must effect their initial registration, or more specifically, obtain an access password to Sisbacen, register with the Company Registry (“CADEMP”) and obtain an RDE-IED for the non-resident investor and the receiving company; c) irrespective of the date for paying up the foreign capital participation in the Brazilian company receiving the investment, the participation subject to registration must be the same as that contained in the company’s accounting books, pursuant to the applicable regulations in force, and for which there is documented proof of ownership of the foreign capital (in other words, for example, the foreign partner requesting “decontamination” must be identified in the articles of association of the limited liability company (“sociedade limitada”) or in the share register of Brazilian corporations (“sociedades por ações”)). The capitalization of profits, interest on net equity, and revenue reserves are also subject to this registration pro-rata to the participation of each foreign investor in the totality of the shares/quotas paid up in the capital of the recipient company in which the respective income was earned in Brazil, when arising from the portion of tainted capital subject to registration. The declarant, representing both the company receiving the foreign investment and the non-resident investor in Brazil, shall be responsible for the registration required by the aforesaid CMN Resolution No. 3,447/2007 and BACEN Circular No. 3,344/2007, as well as for the documented proof that the tainted capital belongs to the individual or corporate entity, domiciled or with head offices outside Brazil. It should be noted that the supporting documents to the declarations submitted to BACEN must be maintained by the declarant for the term of 5 (five) years as from the date of the Module RDE-IED Declaration. The registration of the tainted capital must be effected within the following deadlines: (i) by June 30, 2007, for tainted capital existing on December 31, 2005; (ii) by the last business day of the calendar year subsequent to the reporting of the annual balance sheet in which the corporate entity is obligated to effect the registration, including the recorded capital as from the year 2006. Violations to the aforesaid rules subject those responsible for the registration to a fine in the form provided below, provided that the amount calculated is equal to or greater than R$ 1,000.00 (one thousand reais): (i) provision of incorrect or incomplete information within the regular time period: up to R$ 25,000.00 (twenty-five thousand reais); (ii) failure to correct or supplement incorrect or incomplete data within the term provided by BACEN: from R$ 25,000.00 (twenty-five thousand) to R$ 50,000.00 (fifty thousand reais); (iii) registration after the deadline, and/or in a form other than provided in the regulation: from R$ 25,000.00 (twenty-five thousand reais) to R$ 50,000.00 (fifty thousand reais); (iv) failure to effect the registration in the form of Resolution No. 3,447/2007: from R$ 50,000.00 (fifty thousand reais) to R$ 125,000.00 (one hundred and twenty-five thousand reais); (v) provision of false information to BACEN: from R$ 125,000.00 (one hundred and twenty-five thousand reais) to R$ 250,000.00 (two hundred and fifty thousand reais). Furthermore, the application of the above-mentioned fines may not exceed the amount of capital subject to registration pursuant to Resolution No. 3,447/2007.