I OVERVIEW OF RECENT ACTIVITY
Brazil has been subject to important regulatory changes in recent years with regard to asset management activities by virtue of several new regulations issued by the National Monetary Council (CMN), the Brazilian Securities Commission (CVM) and the Central Bank of Brazil (CBB) aimed at modernising and optimising the regulatory framework in light of recent market practices.
As further detailed below, noteworthy CVM regulations include CVM Instruction No. 539 of 13 November 2013, which established the suitability rules related to securities distribution; CVM Instruction No. 554 of 17 December 2014 (CVM Instruction 554), which established the new classification of qualified and professional investors; CVM Instruction No. 555 of 17 December 2014 (CVM Instruction 555), which established the new general regulatory framework applicable to investment funds; and, more recently, CVM Instruction No. 558 of 26 March 2015 (CVM Instruction 558), which established the new rules applicable to the professional management of securities portfolios.
On 19 February 2017 the CVM set for public hearing a proposed new regulation applicable to securities advisory activities, with the intention of setting forth standards similar to the ones applicable to discretionary asset management activities.
Private equity funds, which are subject to specific regulation from the CVM, have also been subject to a new regulatory framework by means of the enactment of CVM Instruction 578 of 30 August 2016 (see Section VI, infra).
The CMN in its turn has updated its regulation on foreign investments in Brazil with the issuance of Resolution No. 4,373 of 29 November 2014 (CMN Resolution 4,373). In addition to modernising and simplifying the rules applicable to foreign investments, the new rule also implements new mechanisms to increase the volume of foreign investments in Brazil.
Within their respective areas of authority, on 27 March 2015, the CBB enacted Circular No. 3,752 and the CVM enacted Instructions Nos. 559 and 560, which further regulate foreign capital in Brazil, especially with regard to the registration of non-investors and investments in equity and debt securities via depositary receipts. More recently, the CVM enacted CVM Instruction No. 585 of 5 April 2017, with the purpose of facilitating the offering of foreign securities in Brazil through Brazilian depositary receipts.
It is also worth highlighting CVM Instruction No. 568 of 17 September 2015, which, inter alia, amended the rules applicable to reporting obligations involving significant ownership in publicly held companies, including specific calculations for holdings through derivatives and convertible instruments.
There has been an attempt to diversify and facilitate the possibility and variety of investment opportunities by the Brazilian authorities. The deadline for portfolio managers to adapt to the new regulatory requirements provided for in CVM Instruction 558 was 30 June 2016. These requirements effectively introduce the new regulatory framework applicable to all market participants.
II GENERAL INTRODUCTION TO the REGULATORY FRAMEWORK
The Brazilian financial system can be divided in three tranches: normative agencies, supervisory agencies and market participants.
From a general perspective, federal laws applicable to the capital markets in Brazil contain general provisions with the purpose to establish what the Brazilian capital markets comprise, which entities may be the agents of the market, the different independent agencies that have powers to oversee it and the limits of their authorities.
The normative agencies are responsible for enacting the general regulations and guidelines of the financial system under their respective areas of authority. Such normative agencies are the CMN, which is the main normative agency of the Brazilian financial system; the National Private Insurance Council (CNSP), related to the insurance, capitalisation and open-ended private pension segments; and the National Supplementary Pension Council, related to private pension funds.
The supervisory agencies are generally responsible for monitoring and enforcing the regulations and the compliance of relevant market participants (financial institutions, stock exchanges, investment funds, portfolio managers, etc.). They are responsible for regulating, supervising, developing and controlling their corresponding segment of the financial system. Such supervisory agencies are the CBB, the CVM, the Private Insurance Authority (SUSEP) and the National Supplementary Pension Authority (PREVIC).
Therefore, the supervisory agencies also have normative functions. For instance, Law 6,385 of 7 December 1796 (Brazilian Securities Market Law), which created the CVM, delegates authority on the CVM to, inter alia, establish the regulations governing the activities of asset managers, advisory entities and investment funds.
In summary, the regulations setting forth the specific set of rules that each player and transaction has to comply with are the CVM instructions, CBB circulars and CMN resolutions.
The structure of the Brazilian financial and capital markets is also composed of a self-regulatory agency named the Brazilian Financial and Capital Markets Association (ANBIMA), which created a set of rules with increased corporate governance for its associates (e.g., asset managers, banks and brokerage firms) to comply with.
i Portfolio management and securities advisory services
The local professional management and administration of securities portfolios can only be carried out in Brazil by a natural person or a legal entity duly authorised by the CVM. Such natural person must be resident in Brazil, and the legal entity must be organised and headquartered in Brazil.
The portfolio management activity in Brazil distinguishes two types of portfolio managers with different areas of expertise: fiduciary administration, with direct or indirect responsibility for the custody and controllership of assets and liabilities and, generally, for the supervision of the markets; and asset management, with responsibility for the decision-making process of investments.
Such distinction is duly reflected under CVM Instruction 558, which establishes that portfolio managers, depending on the activities performed, shall request their registration under the fiduciary administrator category, under the asset manager category, or under both.
Additionally, CVM Instruction 558 introduced some other significant changes to rules applicable to the management of securities portfolios. The following changes are noteworthy:
- a assignment of certain responsibilities to statutory officers;
- b possibility of distribution of quotas of investment funds under management; and
- c improvement of rules of conduct and information duties.
Regarding the new information duties required from portfolio managers, they must now publish their internal policies and manuals on the internet, as well as disclose and keep an updated reference form similar to a prospectus applicable to listed companies.
The deadline for portfolio managers to file the first version of their reference form with the CVM was 30 June 2016. So far, the CVM has not made any specific public comment on the reference forms received.
In addition to the asset management activities, it is possible to seek a securities advisory licence with the CVM, which only authorises the holder to provide non-discretionary investment recommendations. Nevertheless, by virtue of another innovation introduced by CVM Instruction 558, asset managers accredited with the CVM pursuant to such rule will be automatically authorised to provide securities advisory services without the need to obtain the specific licence for such purpose.
Notwithstanding the above, the CVM is studying the enactment of a new regulation applicable to securities advisory services, setting forth in detail the requirements and ongoing compliance obligations that investment advisers shall be subject to in order to obtain and maintain their licences. The proposed regulation is still subject to a public hearing and, currently, there is no estimated time frame for the effective rule to be enacted.
ii Investment funds
Portfolio management in Brazil is usually carried out through investment funds. Under local regulations, investment funds are considered as a pool of resources incorporated under the form of a condominium (i.e., they are not corporate organisations) intended for investments in financial instruments and securities, as well as in any other assets traded in the financial and capital markets, according to the terms and conditions established in their by-laws.
A condominium is a type of unincorporated entity in which two or more persons hold joint title to certain assets, being attributed a notional part (quota).
A condominium has no legal personality apart from that of its owners. Even though funds do not have a legal identity under Brazilian law, orders for the purchase and sale of securities are carried out in its name.
Investment funds can be divided into closed-ended and open-ended funds.
Generally, open-ended funds are characterised by the possibility of quota holders to redeem their quotas at any time, and a prohibition, as a general rule, of quotas being assigned or transferred.
Closed-ended investment funds, on the other hand, do not allow the redemption of quotas at any time, except in the case of liquidation of the fund; and its quotas may be transferred, by means of a term of assignment and transference, or through a stock exchange or over-the-counter (OTC) market.
The creation, management and operation of most investment funds in Brazil are currently regulated by CVM Instruction 555, which became effective on 1 October 2015.
However, certain types of funds are subject to specific regulations, including, inter alia, receivables investment funds (FIDCs); real estate investment funds (FIIs); and private equity funds (FIPs), as further detailed in Section VI, infra.
CVM Instruction 555 has introduced relevant changes to the Brazilian investment fund industry, including:
- a new classification of investment funds;
- b clearer obligations for portfolio liquidity management;
- c higher threshold for offshore investments by investment funds;
- d no minimum investment required for investing in foreign investment funds;
- e new rules regarding performance fees; and
- f all communication with quota holders may be carried out electronically.
As a general rule, the distribution of fund quotas must be carried out by duly qualified entities pertaining to the Brazilian securities dealership system. As mentioned above, however, CVM Instruction 558 authorises portfolio managers, even if they are not accredited as a securities distributor, to distribute quotas of managed funds (i.e., they are not authorised to distribute quotas of third-party funds).
iii Investor classification
In order to improve and structure the market, CVM Instruction 554 establishes three categories of investors in the Brazilian financial and capital markets, each requiring their own appropriate level of regulation. The rules set forth the criteria for an investor to be characterised as a qualified and as a professional investor. Retail investors are, therefore, those that do not fall under the previous categories (by exclusion).
Pursuant to CVM Instruction 554, the following shall be considered professional investors:
- a financial institutions and other entities authorised to operate by the CBB;
- a insurance companies and capitalisation societies;
- b open and closed-ended pension funds;
- c individuals or legal entities that hold financial investments in an amount in excess of 10 million reais;
- d investment funds;
- e investment clubs managed by a professional manager;
- f portfolio administrators and securities consultants authorised by the CVM, in relation to their own monies; and
- g non-resident investors.
Likewise, the following shall be considered qualified investors:
- a professional investors;
- b individuals or legal entities that hold financial investments in an amount in excess of 1 million reais;
- c individuals that have been approved in specific certification exams; and
- d investment clubs managed by quota holders.
CVM Instruction 554 came into effect on 1 October 2015, jointly with CVM Instruction 555.
iv Foreign investment considerations
Pursuant to CVM Instruction 555, investment funds have different limits to investments in offshore assets depending on their target public, as detailed below. In general, such limits were increased when compared with the limits imposed by the previous rule, CVM Instruction No. 409 of 18 August 2004 (CVM Instruction 409).
Fixed-income investment fund – foreign debt
Funds targeted exclusively to professional investors
Funds targeted exclusively to qualified investors that meet the certain additional requirements
Funds targeted exclusively to qualified investors that do not meet the above-mentioned conditions
Funds targeted to the public in general (retail)
Funds targeted exclusively to professional investors may invest 100 per cent of their assets offshore. As explained above, there is no minimum investment required from investors in order to acquire quotas of such funds, but they must be professional investors.
It is important to stress that Brazil still has very strict controls on foreign exchange transactions (i.e., on the inflow and outflow of funds to and from the country). According to the Brazilian foreign exchange regulations, all exchange transactions must be carried out through an authorised exchange entity in Brazil.2
With regard to foreign investments in the Brazilian capital and financial markets, CMN Resolution 4,373 establishes that they must be duly registered with the CBB and the CVM, as well as meet other requirements established therein. As a general rule, such investments must be made in organised capital markets (e.g., stock exchanges and OTC markets).
In addition to investing in the Brazilian capital and financial markets, foreign investments can also be made directly in the form of equity of Brazilian companies. Such investments shall also be registered with the CBB, under the Electronic Registration System – Foreign Direct Investment.
v Offering of foreign securities
Under Brazilian law, the offering of foreign securities is subject to regulation that affects the possibility of offering such products on a public basis in Brazil.
The public offering of securities in Brazil is primarily regulated by the Brazilian Securities Market Law and CVM Instruction No. 400 of 29 December 2003, as amended (CVM Instruction 400). According to such regulations, as a general rule, public offerings must be previously registered with and authorised by the CVM.
Foreign securities are generally not eligible for registration in Brazil. Therefore, in order for foreign entities to offer their products in Brazil, they shall adopt certain procedures to avoid their public disclosure in Brazil.
Brazilian law does not provide a definition of what constitutes a private placement of securities. Consequently, the concept of private placement is based on what would not constitute a public offering under Brazilian law and, therefore, would not require registration with the CVM.
Individuals or legal entities resident in Brazil are permitted to invest abroad, provided that information relating to such assets owned abroad is fully disclosed to the CBB and the Brazilian tax authorities. The obligation to disclose to the Brazilian authorities the existence of assets owned abroad lies exclusively with the owners of such assets.
Nevertheless, specific entities of the Brazilian financial system, such as pension plans, insurance and reinsurance companies, governmental entities, banking companies and investment funds, have certain limitations when it comes to investing abroad (e.g., rules regarding portfolio diversification and asset concentration limits per investor and type of asset). The main rules regarding foreign investment restrictions by Brazilian entities are detailed in Section II.iv, supra, and Section VI, infra.
III COMMON ASSET MANAGEMENT STRUCTURES
The regulatory framework for investment funds (the main vehicle for investments in Brazil) recently underwent important amendments.
With the objective of streamlining and updating the structure of the investment fund industry, CVM Instruction 555 has modified the main existing types of investment funds. The new structures permitted by CVM Instruction 555 are as follows:
Main risk factor
Fixed-income investment fund
Variation of interest rate, price indices or both
e foreign debt
f private credit
g foreign investment
Shares investment fund
Price variation equity securities of traded in the organised market
a Brazilian Depositary Receipts Level I
b access market
c foreign investment
Exchange investment fund
Price variation of foreign currency or the variation of exchange coupon
a foreign investment
Multimarket investment fund
Various risk factors (operates with different strategies and in different markets)
b private credit
c foreign investment
Other important types of funds not regulated by CVM Instruction 555 are further detailed in Section VI, infra.
IV MAIN SOURCES OF INVESTMENT
The Brazilian fund industry represents a significant target for investments in the country. It is placed among the top 10 asset management industries in the world, with approximately US$1.1 trillion distributed in 15,000 funds.3 This also represents more than 50 per cent of the national GDP.
Despite the adverse economic and political conditions of recent years, the Brazilian investment fund industry experienced growth of 17.3 per cent in 2016, which corresponds to the highest growth rate among countries with net assets in excess of US$300 billion.
In the first semester of 2017, the net sales (i.e., the difference between the amounts related to new investments versus redemptions) of fund quotas amounted to 113.6 billion reais, which corresponds to the highest net sales ever recorded in the historical series since 2002. With regard to such figure, approximately 50 per cent were directed to fixed-income investement funds (57.5 billion reais) and 35 per cent to multimarket investment funds (39 billion reais).
The Brazilian fund industry is still greatly concentrated in fixed-income investments, largely because of the high interest rates maintained in previous years, in addition to the country’s long-term investor concentration profile, such as government and private pension funds, which has culminated in fixed-income investment funds accounting for 48.6 per cent of the Brazilian fund industry’s equity.
Nevertheless, an increase of diversification of local portfolios is expected due to the current tendency of interest rates returning to lower levels, having already decreased from 13 per cent per annum in January 2017 to 10.25 per cent per annum in June 2017.
V KEY TRENDS
After being expected by market participants for a long time, a new regulatory framework for the investment fund industry was recently implemented, along with with the entering into force of CVM Instructions 554, 555 and 558.
Ten years after the enactment of CVM Instruction 409, the new regulations have been designed to bring more efficiency, transparency and competitiveness to the fund industry. They also mark a maturity of the local market, demanding stricter structures, transparency and professionalism from market participants.
In addition, the regulator demonstrated a better understanding of the market’s dynamic, thus creating and regulating new sought-after investment opportunities. This could prove essential for making the Brazilian market more attractive to international investors and pave the way for the continuous growth of the industry.
On the other hand, the new regulations have also made the investment in foreign markets more accessible to Brazilian investors and an increase of investment funds aimed at investing offshore should be noticed.
There is potential for development in other specific sectors governed by the CVM; for example, FIPs and securities advisory services, by virtue of the new rules being implemented, shall contribute to the process of aligning the local rules to the industry’s international standards and best practices, as well as to the technical and operational needs of market players.
Moreover, the Brazilian regulatory authorities have been demonstrating a stricter stance on compliance. Since the strengthening of the anti-money laundering regulations in 2012 with the enactment of Law 12,683 of 9 July 2012, important anti-corruption rules have also been enacted (Law 12,846 of 1 August 2013, and Decree No. 8,420 of 18 March 2015).
VI SECTORAL REGULATION
Brazilian accredited insurers are regulated by three authorities: CNSP, SUSEP and CMN.
Pursuant to CMN Resolution No. 3308 of 31 August 2005, as amended, insurers can only invest in three different types of assets: fixed income, variable income and real estate.
Brazilian insurance companies are prevented from investing offshore, except through local investment funds and Brazilian insurance companies’ branches located offshore. With respect to the former, Brazilian companies are allowed to invest up to 10 per cent of their funds and financial resources in quotas of local investment funds qualified as ‘foreign debt’. Thus, the Brazilian insurance company would invest in a local investment fund, which, in its turn, would invest in the offshore market.
Under Brazilian legislation, there are two types of pension funds: private funds, which are alternatively classified as open-ended and closed-ended; and public funds, which are exclusively composed of pension plans whose members are employees of authorities and government-held companies of the union, states, Federal District and municipalities.
While the pension plans offered by open-ended pension funds may be contracted by any individual or group of individuals, those offered by closed-ended pension funds are generally accessible only by sponsors.
The private pension segment is generally governed by Supplementary Law 109 of 29 May 2001, as amended.
While open-ended pension funds are organised as regular joint-stock companies, being regulated by the above-mentioned authorities, closed-ended pension funds can only be organised as foundations or non-profit companies, and are regulated by PREVIC.
The investment restrictions applicable for Brazilian accredited insurers outlined in Section VI.i, supra, are the same for open-ended private pension companies.
In addition, CMN Resolution No. 3,792 of 24 September 2009, as amended, further regulates closed-ended pension funds, and sets forth the limits and rules for investment by closed-ended pension funds.
Closed-ended pension funds may invest in:
- a fixed-income assets;
- b variable income assets;
- c structured transactions;
- d offshore investments;
- e real estate; and
- f transactions with members of the related pension plan.
Brazilian closed-ended pension funds are only allowed to invest up to 10 per cent of their net equity offshore through a local investment fund (e.g., feeder fund). In addition, a single Brazilian closed-ended pension fund may not hold more than 25 per cent of the net equity of an investment fund.
The restrictions are due to a governmental attempt to prevent Brazilian residents’ savings being invested outside the country and exposed to offshore risks.
There are discussions on the possibility of changing the above-mentioned thresholds; however, there is still no concrete proposal in place in this regard.
iii Real property
FIIs are governed by Law 8,668 of 25 June 1993, as amended, and further regulated by CVM Instruction No. 472 of 31 October 2008, as amended.
Such funds are designed to invest in real estate projects and are necessarily closed-ended funds. Permitted investments are in:
- a real estate properties and rights;
- b equity of real estate companies;
- c special purpose entities with real estate business;
- d other funds (FIPs, FIIs, FIDCs); and
- e real estate receivables certificates and other instruments.
iv Hedge funds
There are no specific rules regarding hedge funds in Brazil. Local authorities do not consider them as a separate category of investment funds, being generally regulated by CVM Instruction 555. Therefore, such funds may be organised as, for instance, multimarket investment funds with diverse investment policies.
v Private equity
FIPs are primarily governed by CVM Instruction 578 of 30 August 2016 (CVM Instruction 578).
Pursuant to CVM Instruction 578, FIPs are characterised as closed-ended investment funds that invest in shares (stock), convertible or non-convertible debentures, subscription warrants and other securities either convertible into or exchangeable for shares issued by either publicly or privately held corporations, as well as equity investments in limited liability companies; and, as a general rule, that actively participate and monitor the management of the invested company. It is also permissible that FIPs invest in shares of other FIPs.
At least 90 per cent of the FIP’s net equity must be invested in such permitted investments, which may now include foreign assets, provided such foreign assets also comply with the FIP’s investment restrictions. Foreign investments by FIPs are limited to 20 per cent of their net equity.
In addition, FIPs shall have a definite term of duration and be targeted exclusively to qualified investors. In terms of classification, FIPs may fall under the following categories: (1) seed capital; (2) venture capital; (3) infrastructure; (4) research, development and innovation; and (5) multistrategy.
CVM Instruction 578 sets forth that most of the operational rules governing the FIP and its operations, particularly those involving, inter alia, governance matters, minimum net equity requirements, investment policy, capital calls, distributions of proceeds and duration, may be established in the FIP’s by-laws. Therefore, the FIP structure is very flexible.
vi Other sectors
FIDCs are specifically governed by CVM Instruction No. 356 of 17 December 2001, as amended.
FIDCs enable the securitisation of virtually all types of receivables, thus being the main vehicle currently used for securitisation in the local market.
Moreover, FIDCs must invest at least 50 per cent of their portfolio in receivables. The quotas of FIDCs may be divided into senior and subordinated quotas. As a general rule, senior quotas shall have priority for amortisation and redemption, while subordinated quotas permits the creation of over-collateral.
Brazilian regulations also set forth rules regarding non-standardised FIDCs. Pursuant to CVM Instruction No. 444 of 8 December 2006, such funds broaden the possibility of investment in receivables, such as government bonds and litigated claims.
Exchange traded funds (ETFs)
Governed by CVM Instruction No. 359 of 22 January 2002, as amended (CVM Instruction 359), Brazilian ETFs are index-tracking funds and, therefore, their portfolio reflects a given index of reference (benchmark).
Until 2013, Brazilian ETFs investments could only reference Brazilian stock and variable-income asset indexes.
However, the enactment of CVM Instruction No. 537 of 16 September 2013, which amended CVM Instruction 359, finally made fixed-income ETFs accessible from a regulatory perspective and anticipated certain issues regarding the oncoming enabling of international ETFs (local ETFs that replicate international indices).
As of 2014, upon the concession of a few waivers, the first international ETFs were launched under CVM Instruction 359, giving such ETFs investors exposure to foreign assets. On 12 July 2016, the CVM expressed that additional waivers for the offering of international ETFs to the general public could be granted on a case-by-case basis.
The number of Brazilian standard ETFs has grown since the first of its kind was established; however, the number of Brazilian ETFs referencing foreign indexes is still unfortunately extremely low, and to date, there is no Brazilian fixed-income ETF.
VII TAX LAW4
Given that Brazilian investment funds are treated as condominiums and not as legal entities, any income or gains obtained by such funds from their transactions are not subject to taxation in Brazil. The taxation occurs only when the income or gains are eventually distributed to quota holders.
As a general rule, foreign exchange transactions are subject to tax on financial transactions (IOF F/X) pursuant to Decree No. 6,306 of 14 December 2007.
Remittance of funds to or from Brazil are generally subject to IOF tax at a rate of 0.38 per cent. However, foreign exchange transactions carried out by Brazilian investment funds in connection with the execution of investments in the international market are subject to IOF at a rate of zero per cent.
ii Open-ended investment fund – Brazilian quota holders’ taxation
Under Brazilian tax legislation (Normative Ruling No. 1,585 of 31 August 2015 (IN 1,585/15)), as a general rule,5 income and gains distributed from open-ended funds to quota holders resident in Brazil related to the redemption or amortisation of fund’s quotas would be subject to a withholding income tax (WHT) assessment at variable regressive rates (22.5 to 15 per cent) depending on the holding period of the investment and on the maturity term of a fund’s portfolio.
If the fund has a long-term portfolio (assets with a redemption term exceeding 365 days), the WHT would be assessed at the following rates:
- a 22.5 per cent for a holding period of up to 180 days;
- b 20 per cent for a holding period of between 181 and 360 days;
- c 17.5 per cent for a holding period of between 361 and 720 days; and
- d 15 per cent for a holding period of longer than 720 days.
In its turn, if the fund has a short-term portfolio (assets with a redemption term less than 365 days), the WHT would be assessed at the following rates: 22.5 per cent for a holding period of up to 180 days; and 20 per cent for a holding period longer than 180 days.
In addition to the above, Brazilian quota holders of open-ended funds would be subject to the WHT assessment on a semi-annual basis (on the last days of the months of May and November) at rates of 15 or 20 per cent, depending on the classification of the fund as either long-term or short term.
This twice-yearly taxation is also known as come cotas taxation, which is deemed an advance payment of the WHT to be assessed in cases of redemption or amortisation of quotas, and shall not result in an increase of the overall tax burden of the investment (i.e., the WHT will be offset by the come cotas previously paid).
In the event that the quota holder happens to be a legal entity, the WHT tax potentially paid by the investor as a result of its funds investment would be considered as a prepayment of the corporate taxes due by such investor, which means that the investor would be entitled to offset the WHT tax against the corporate income tax (IRPJ and CSL) assessed at, as a general rule, a combined rate of 34 per cent on the taxable income derived by such entity.
Moreover, financial income derived by Brazilian legal entities from investment in funds would be subject, as a general rule,6 to the assessment of the contribution on gross revenues (PIS/COFINS) at a combined rate of 4.65 per cent.
iii Closed-ended investment fund – Brazilian quota holders’ taxation
Closed-ended investment funds are generally taxed upon their liquidation, the amortisation of quotas or the disposal of quotas pursuant to the regressive rates established by IN 1,585/15:7
- a 22.5 per cent for a holding period of up to 180 days;
- b 20 per cent for a holding period of between 181 and 360 days;
- c 17.5 per cent for a holding period of between 361 and 720 days; and
- d 15 per cent for a holding period of longer than 720 days.
In certain cases, capital gains incurred by individuals in the disposal of quotas of certain funds in transactions carried out outside the stock exchange and the organised OTC markets could be subject to WHT assessment at progressive rates of:
- a 15 per cent on the amount of gains not exceeding 5 million reais;
- b 17.5 per cent on the amount of gains in excess of 5 million reais but not exceeding 10 million reais;
- c 20 per cent on the amount of gains that in excess of 10 million reais but not exceeding 30 million reais; and
- d 22.5 per cent on the amount of gains in excess of 30 million reais.
Unlike open-ended investment funds, the come cotas taxation (explained in subsection ii, supra) is not applicable to closed-ended funds.
As for investors who are legal entities, the income derived from the closed-ended investment fund will be generally subject to the assessment of the IRPJ and CSL at, as a general rule, a combined rate of 34 per cent, and the investors will be allowed to offset such tax with the WHT previously levied on their investment in the fund.
Income derived from investment in the fund will be also subject to the PIS/COFINS, as a general rule,8 at a 4.65 per cent rate for corporate entities.
iv Non-resident quota holders taxation
Currently, foreign investments into quotas of an investment fund (regardless of whether they are open or closed-ended) carried out pursuant to CMN Resolution 4,373 are generally9 subject to WHT at a rate of 15 per cent on the income and gains distributed by the fund, unless the quota holder is located in a tax haven jurisdiction,10 in which case the investor will receive the same tax treatment applicable to Brazilian individuals.
As a general rule, the remittance of funds into Brazil carried out by foreign investors for purposes of subscribing quotas of Brazilian investment funds are currently subject to IOF assessment at a flat rate of zero per cent. Likewise, the remittances of funds from Brazil carried out by Brazilian investment funds as a return of foreign investment, regardless of whether it is derived from amortisation or redemption of quotas, is also currently subject to IOF assessment at a zero per cent rate.
v IOF bonds
Finally, the IOF assessed on bonds and securities transactions (IOF bonds) may be levied on the disposition of investment fund quotas by both Brazilian and non-Brazilian investors at a rate of 1 per cent per day. The IOF bonds is, currently, limited to the gain ascertained in the transaction, and reduced pursuant to the length of time that the investment is held by the investor. For instance, transactions with securities held by the investor for at least 30 days will not result in the collection of the IOF bonds.
The current regulatory framework is expected to improve the structure and profile of the Brazilian investment fund industry, creating great potential for growth and development for managers, national and international investors, and savers.
CVM Instruction 554 improves the definitions of the classes of investors and clarifies the regulations that each of such classes is subject to, thus increasing the transparency of and accessibility to asset management products.
In addition, CVM Instruction 555 offers new and efficient investment opportunities for local and foreign investors, especially with regard to the accessibility of foreign markets by Brazilian investment funds. The internationalisation of investments can also benefit the ever-increasing pension fund segment, which may be intensified by the new rule.
The rules created by the CVM Instruction 558 also evidence progress in the continuous improvement of the Brazilian investment funds market. The modernisation of the rules applicable to portfolio managers stands out especially with regard to the requirement to specifically assign the responsibility for compliance and risk management to a statutory officer; the improvement of the rules of conduct and internal controls; the segregation of custody and controllership of assets and liabilities activities from management activities; and the distribution of funds quotas by portfolio managers, even though such portfolio managers are not financial institutions.
Notwithstanding the above, CVM Instruction 558 tends to, directly or indirectly, generate additional costs to market participants considering that it increases monitoring and disclosure duties regardless of the size of the portfolio manager.
CVM Instruction 558 intensified the enforcement of transparency, diligence and loyalty principles required from portfolio managers. The CVM’s intention was to implement mechanisms to allow investors to analyse and compare the way that portfolio managers are more or less structured.
The above is also true with regard to the proposed rule that will govern the development of securities advisory services in the country.
Professional asset management activity has been the target of several regulations in advanced markets such as Europe and United States since the financial crisis of 2008. The current regulation in such jurisdictions, in addition to various requirements regarding disclosure, also contains requirements related to, for example, the custody of assets, disclosure of systemic risks, bookkeeping, registration of financial statements and, in some cases, the necessity to fulfil minimum financial requirements, all under strict supervision by the competent authorities. Therefore, it is possible to identify an approach from regulations applicable to investment funds towards those applicable to banking and insurance markets.
It would not be a surprise if, in the near future, once the local market is duly mature, stricter rules also become mandatory in Brazil.
1 Fernando J Prado Ferreira is a partner and José Paulo Pimentel Duarte is an associate at Pinheiro Neto Advogados.
2 In addition to all foreign exchange transactions having to be carried out through an authorised exchange entity, other requirements include that a relevant foreign exchange contract must be signed describing the respective parties, the date, the nature of the transaction and the exchange rate, among other information; and that all foreign exchange transactions must be registered at the CBB electronic data system (SISBACEN).
3 Based on information provided by the 2017 Brazilian Mutual Fund Industry Yearbook published by the Center for Studies in Finances of Fundação Getúlio Vargas and on ANBIMA Investment Funds Report of 6 July 2017. The other numbers indicated in this section are also based on such documents.
4 This section was reviewed by Tiago Lopes da Cruz, an associate at Pinheiro Neto Advogados.
5 Not comprising shares investment funds, FIIs and other types of funds that are governed by particular tax rules.
6 More precisely, to legal entities subject to the non-cumulative regime of the PIS/COFINS taxation and financial institutions and equated entities pursuant to the applicable regulations.
7 See footnote 5.
8 See footnote 6.
9 Exception made for certain investment funds, inter alia, shares investment funds (WHT rate of 10 per cent); FIPs, which, provided certain statutory requirements are met, may benefit from a more favourable tax treatment; and investment funds with portfolios composed of at least 98 per cent of government bonds (WHT rate of zero per cent).
10 Normative Ruling No. 1,037 of 2010, as amended, lists the jurisdictions considered tax havens for the purposes of Brazilian tax law.