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Category: Banking, insurance and finance

Individuals and legal entities resident, domiciled or with headquarters in Brazil, as provided for in tax law, must report to the Central Bank of Brazil the assets and amounts held by them outside the country. The reporting is mandatory to those holding assets abroad amounting to or exceeding the equivalent of 1 million USD on December 31, 2020. Those assets include properties and rights, such as corporate interests in companies, fixed-income securities, shares, real properties, deposits, loans investments, among others.

Those same individuals and legal entities must deliver a quarterly report to the Central Bank of Brazil listing assets held abroad on March 31, June 30 and September 30 of each year, if the total value of such assets amounts to or exceeds the equivalent to 100 million USD.

The report referring to December 31, 2020, must be delivered through the Brazilian Capital Abroad (CBE) reporting form available on the Central Bank of Brazil website at www.bcb.gov.br, from February 15, 2021, through April 5, 2021, at 6 PM.

The manual containing detailed information about the reporting content and requirements is also available on the Central Bank of Brazil website.

The late delivery of the declaration, as well as the lack of reporting or the submission of false, inaccurate or incomplete information, subjects the violator to a fine of up to 250,000 BRL imposed by the Central Bank of Brazil.

(CMN Resolution 4.841, of July 30, 2020; CMN Resolution 3,854, of May 27, 2010; BCB Circular 3,624, of February 6, 2013; and BCB Circular 3,857, of November 14, 2017, as amended).

Category: Labor and employment

The Public Ministry of Labor (MPT) issued the Technical Note (NT) nº 1/2021 recommending companies to implement alternative measures for pregnant employees during the covid-19 pandemic.

According to the MPT, when the pregnant woman's activity is compatible with remote work, the company must adopt this modality, avoiding exposure to the risk of contagion. In this context, it is essential to observe what is provided for in articles 75-A to 75-E of the CLT.^[i]

When the pregnant woman's work is only possible in person, the company must relocate her to other sectors of the company, in airy or isolated spaces, and with fewer employees. Besides, you must ensure flexible hours so that pregnant women do not have to travel to work during peak hours on public transport.

The technical note also mentions that, during the pandemic, a pregnant employee’s unfair dismissal may constitute discriminatory dismissal.

The text has no force oflaw. It is only a recommendation of the MPT and indicates the institution's possible understanding of administrative inspections.

High risk for pregnant women

For the issuance of NT, the MPT took into account current statistical data on covid-19 and studies that point to an increase in the mortality of pregnant women and women who have given birth (puerperal women) affected by the disease. Brazil currently accounts for about 77% of these cases worldwide, and the MPT's concern with this group of workers is legitimate.

. Companies increasingly adopt remote work as a safe option for employees who are part of risk groups, like pregnant women. In any modality, remote work can be an immediate and effective solution, considering that, since the beginning of the pandemic, many companies have used other alternatives, such as the granting of collective vacations (full or partial), suspension of employment contracts (lay off), suspension of the employment contract for qualification purposes (article 476-A of the CLT) or measures provided for in Law No. 14.020 / 20, which can no longer be applied.^[ii]

However, companies’ concern remains with the need to define the way the work will be provided since it is necessary to continue productive activities and maintain jobs. All of this in a scenario still with high rates of contagion.

^[i] Articles 75-A to 75-E of the CLT are part of chapter II-A, entitled “Do Teletrabalho” and were inserted by Law nº 13.467 / 2017.

^[ii] Legislative Decree No. 6/2020 was in effect until 12/31/2020, so that the measures provided for in Law No. 14,020 / 2020 were applicable as long as the state of public calamity was in effect.

Category: Institutional

WE HAVE MOVED. Our new headquarters is an innovative, contemporary environment, designed in the smallest details to offer the best Machado Meyer experience to our employees, customers and partners. With this space, we want to transmit our identity and encourage our people's protagonism, which makes us go further and further.

We invite you to take a tour of our office in this video and explore our new home!

WE HOPE WE CAN SEE YOU SOON!

EDIFÍCIO SECULUM II - FARIA LIMA

Rua José Gonçalves de Oliveira, nº 116

Itaim Bibi, São Paulo, SP, 01453-050

Category: Tax

After almost five years since the filing of the Repetitive Demand Resolution Incident (IRDR) No.0017610-97.2016.4.03.0000, the controversy over the The need to establish the legal personality disregard incident (IDPJ) in cases of tax liability was Special Body of the Federal Regional Court of the 3rd Region, in a session held on February 10th.

The vote that prevailed in the case was taken by the judgeWilson Zauhy, who concluded that the request was partially upheld to establish the thesis that “There is no place for the establishment of an incident of disregard for the legal personality in cases of redirection of tax enforcement provided that it is founded exclusively on tax liability in the cases of articles 132, 133, I and II, 134 of the CTN, the IDPJ being indispensable for proof of liability due to patrimonial confusion, irregular dissolution, formation of an economic group, abuse of rights, excess of powers or violation of the law, contract or bylaws (CTN, art. 135, items I, II and III), and for the inclusion of people who have a common interest in the situation that constitutes the triggering event of the main obligation, provided that they are not included in the CDA, all without prejudice to the regular progress of tax enforcement in view of the other co-obligors..

In his vote, the judge faced the controversy from three perspectives: the appropriateness of the IDPJ in terms of tax enforcement, the need for the prior establishment of the IDPJ in cases of tax liability and, also, the need to override the executive deed in relation to the others co-obliged, originally executed.

When dealing with the suitability of the IDPJ in terms of tax enforcement, Judge Wilson Zauhy considered that the establishment of such an incident would be possible under article 4, paragraph 2, of Law 6.830 / 80, which establishes the subjection of tax collections to liability rules provided for in the civil law, among which the disregard of the legal personality, highlighted in article 50 of the Civil Code, stands out.

In addition, the judge stressed that the changes introduced to the Civil Code by Law No. 13,874 / 19 would ratify the appropriateness of disregarding the legal personality in the context of tax collections. This is because the new wording given to article 50 of the Civil Code would have broadly defined the concepts of misuse of purpose and patrimonial confusion, which, in his understanding, would contemplate the hypotheses of excess and abuse of power, provided for in article 135 of the Code National Tax Authority (CTN).

Having established the premise that the establishment of the IDPJ in the context of tax enforcement would be appropriate, the vote faces the mandatory management of such procedure in cases of tax liability. For this, the judge considered it important to differentiate the legal responsibility provided for in articles 132, 133 and 134 of the CTN from that established in articles 124 and 135 of the same legal diploma.

According to the judge, the tax liability provided for in articles 132, 133 and 134 of the CTN depends on the occurrence of certain objective facts that do not require extensive probative delay. This is the case of the attribution of tax liability to the company that results from the merger, incorporation or transformation of another, to the one that acquired goodwill, commercial or industrial establishment and, still, to those who are subsidiary for third party debt, as is the case of partners who are responsible for the tax debts of the liquidated company.

A different situation would be that provided for in articles 124 and 135 of the CTN, which presuppose the presence of a certain volitional element on the part of the third party to whom the responsibility intends to be imputed. This is the case of the accountability of those who would have a common interest in the occurrence of the taxable event and, also, of the directors who practice acts with excessive powers.

Specifically for the cases provided for in articles 124 and 135 of the CTN, Judge Wilson Zauhy considered it necessary to establish the IDPJ, in order to prove, through a wide contradiction, the presence of the volitional element of the third party to whom the tax liability is to be attributed. . Such a presence cannot be presumed.

To corroborate this understanding, the judge mentioned the Major Theory of Disregard for Legal Personality, enshrined in the Civil Code and ratified by the Superior Court of Justice. According to this theory, the disregard of the legal personality presupposes full proof of the occurrence of misuse of purpose or patrimonial confusion, and it is not lawful for the interpreter to assume such facts.

In addition, as for the need to override the executive order while processing the IDPJ, the judge clarified that the best interpretation to be given to the stir is that the dispute will not be suspended, and should continue with respect to the other co-obligors.

Although the trial was finalized within the scope of the Federal Regional Court of the 3rd Region, the solution given to the controversy is not definitive. In view of the judgment given, it is appropriate to file a special appeal and an extraordinary appeal, which will be automatically indicated for processing under the same system of repetitive appeals. Thus, the thesis to be defined by the higher courts will be uniformly applicable throughout the national territory, under the terms of article 987 of the Civil Procedure Code.

Category: Infrastructure and energy

Fabio Falkenburger, Marina Estrella, Lucas Scaff, Pedro Amim and Vitor Guilherme da Silva Barbosa

Theme almost always present in all recent discussions involving executive aviation, aircraft shared ownership has just gained its own rules.

In a time of serious difficulties caused by the pandemic to the aeronautical sector, the National Civil Aviation Agency (Anac) is attentive to the demands of the market, acting quickly to mitigate the impacts of the economic crisis in aviation and to modernize legislation in an attempt to expand the population's access to services and facilitate the activities of companies and individuals operating in the sector.

After elaborating and changing several rules in 2020 to solve the problems created by the pandemic, Anac started this year at the same pace of intensity and continued the discussions on the creation of specific rules to regulate the sharing of aircraft ownership, a theme that was coming being studied by the agency since the end of 2018.

After two years of discussions, debates and technical analyzes, the Collegiate Board has just approved Subpart K of the Brazilian Civil Aviation Regulation No. 91 (RBAC 91), which establishes the general operating requirements for civil aircraft. The new subpart officially creates the figure of the shared ownership program, which should contain two or more airworthy aircraft, in addition to bringing important definitions for the terms "quota", "shareholder" and "administrator".

Under the new rules, quota will mean ownership, the right to property, the right to use or possession and / or the right to use or possession convertible into property right relating to an aircraft that is part of a shared ownership program. Shareholders are understood as individuals or entities that own an aircraft quota, directly or through cooperatives, and that have entered into specific contracts to adhere to the terms and conditions of the sharing program. The administrator is defined as the entity that offers the quotaholders the program administration services and that will be responsible for meeting the requirements of RBAC 91 and for exercising the operational control of the aircraft, even when the flight is performed for the benefit of a quotaholder. 

The regulation prohibits the paid transportation of people or goods on flights of the shared ownership program, but allows reimbursement of the expenses of a specific flight, which may include costs such as fuel, crew expenses, hangar, insurance made especially for the flight, airport charges, food, land passenger transportation and charges for the use of navigation facilities.

A relevant point that can be explored by the actors in the sector is the sharing of fixed costs. The regulation requires that a management contract be signed with a minimum duration of one year between the quota holders and the program administrator and stipulates that the contract must cover issues related to management services. The standard establishes that they will be able to understand, among others, services related to the employment, supply and hiring of pilots and crew and maintenance services for the program's aircraft.

The standard also determines the maximum number of shareholders, which may be 16, in the case of fixed-wing aircraft, or 32, in the case of helicopters. Anac informed through its official website that, as of August 2022, operations of shared aircraft must comply with the new provisions, but nothing prevents interested parties from requesting in 2021 the approval of administrative specifications to prove the regular existence programs. Those already operating shared aircraft must submit documentation for compliance with Subpart K by February 2022.

Aircraft sharing becomes a regulated activity and subject to prior approval by Anac. According to information released by the agency, the expectation is that a supplementary instruction will be issued by August 2021 to define the procedures for document analysis, requirements demonstration, inspection and authorization issuance.

The new rules, which were eagerly awaited by the sector, will contribute to the expansion of Brazilian executive aviation, allowing to reduce costs and strengthen a market niche with significant development potential.

Category: Infrastructure and energy

Liliam F. Yoshikawa and Camila de Carli Rosellini

Like other areas in the infrastructure segment, the mining sector, especially the Brazilian one, has undergone regulatory changes to attract more investments and to correct certain gaps related to mining practices and socio-environmental concerns.

Even in the midst of the covid-19 pandemic, the Mining and Development Program (PMD) was launched, which sought to define the federal government's agenda for the mining sector in the period from 2020 to 2023, aiming at the country's sustainable development in its socioeconomic bases and environmental.

In response to the government's intention to attract investments to Brazilian mining, the PMD continued a series of regulations already issued to revitalize the sector, such as the reform of the mining code. Occurred in 2018, through the publication of Decree No. 9.406 / 18, the reform brought stricter environmental rules on the obligation to close the mine and recover degraded areas, tightened the rule for counting the mineral research term and its hypotheses for extension , encouraged the economic use of tailings and mining waste and systematized the electronic auction to make areas available.

In the same vein, the Mining Plan presented by the Collegiate Directorate of the National Mining Agency (ANM), an organ linked to the Ministry of Mines and Energy (MME), in May 2020 proposed the revision of several resolutions and ordinances to the mining organ, with the objective of reducing the bureaucracy of mineral legislation and achieving an improvement in the business environment, including in response to the damage caused to the mineral sector by the pandemic.

After the official launch of the PMD, Bill No. 550/19 of the Federal Senate was approved, which was pending before the Chamber of Deputies and proposed amendment of the National Dam Safety Policy, aiming to increase control over dam safety. The project was converted into Federal Law No. 14,066 / 20.

In addition to adapting the legislation on dam safety to the growing socio-environmental concern, mainly with a focus on disaster prevention, Law No. 14.066 / 20 also sought to update the legislative framework in relation to the new technologies developed.

In this sense, Law No. 14.066 / 20 follows the guidelines of the PMD and is closely related to some of the program's goals aimed at socioeconomic and environmental commitment in mining, specifically with the goal of improving parameters for dam safety, its regulation, control, inspection, monitoring and responsibilities (plan 3.2, goal G).

Another recent legislative innovation refers to ANM Resolution No. 32, which changed the rules for the inspection and safety of dams in the country, with changes in the elaboration of the flood map and in the deadlines for presenting the map based on the DPA (Potential Associated Damage) of each dam, automatic elevation of the dam risk category to “high” in cases specified in the resolution, among other measures to increasingly improve the inspection and safety of mining dams.

In accordance with the objective of promoting the sector and also with the actions established by the Lavra Plan, after a long period of speculation and discussion, in September 2020, the ANM also started the process of making areas available, offering 502 units that were in the research application or authorization phase.

The second round, which took place in December last year, offered 7,027 areas, 69% of which were for mineral research purposes and the others for mining concessions. The period of the last public offering will end on March 1, 2021. If any area in availability receives more than one expression of interest, the electronic auction will take place from March 8 to 15.

In addition to the innovations already described in the sector, ANM collected, between November 27 and January 26, contributions to a new regulation proposal to discipline the procedures for the use of waste and tailings. The objective is to improve and update mineral legislation, due to the influence of new technologies and global trends in the sector, and to rationalize the use of deposits.

In another initiative that should have great repercussion in the sector, the President of the Republic forwarded 35 bills to the National Congress this month that he considers a priority for the country, among them the controversial proposal to regulate mining activities in indigenous lands, which must be the subject of many discussions.

All actions reveal a more dynamic mining sector, in search of technological innovations and initiatives that foster the attraction and renewal of investments and increase the legal security of mineral and other related activities. Both the Mining and Development Program and the recent legislative innovations of MME, ANM and other environmental agencies intend to boost advances in the sector, one of the most important to leverage the Brazilian economy.