Foreign Citizens

The modalities of company constitution are legally established by the Brazilian Civil Code, 2002 edition, whereas upon constitution they must comply with the provisions of articles 1.039 to 1.092, which provide for the following types of corporations:

• Collective Name General Partnership (Sociedade em Nome Coletivo)
• Company with Mixed Limitation Managers/Non-Managers (Sociedade em Comandita Simples)
• Joint Stock Corporation (Sociedade Anônima)
• Limited Company (Sociedade por Cotas de Responsabilidade Limitada)
• Joint Stock Mixed Limitation Corporation (Sociedade em Comandita por Ações)

Yes. The constitution will be carried out after the registration or filing of the bylaws before the competent authority, that is: the Board of Commerce. For civil societies, foundations, associations and non-governmental organizations, the registration shall be made before an official Registry of Deeds and Documents.

Yes. However, the cooperative company is not included therein, since it is not a conventional partnership that may be chosen to exploit a commercial activity, as it is defined, by means of a corporation, since it is base don an activity regulated by a specific legislation, neither does it apply to unincorporated joint ventures (sociedade em conta de participação – SCP), since, although it is called a company, indeed it is not a commercial company, nor is it a corporation; it is in fact a non-incorporated venture.

The sociedade em conta de participação (a denomination of Brazilian Law) or conta da metade (in Portuguese Law) is a company partnership that internally bonds its partners. It is composed of one or more entities, whereas one of them is necessarily the entrepreneur or commercial company.

Since it is merely a tool available to facilitate the relationship between partners, it is not an actual incorporation; it is not an autonomous legal entity, it has no own equity and it does not exist before third parties. The enterprise is executed by two types of partners: the ostensible partner and the hidden partner.

The ostensible partner (necessarily a commercial company) carries out the legal business necessary to execute the Project in his name, and is liable for the corporate obligations in default. The hidden partner, on the other hand, has no legal liabilities regarding the business carried out on behalf of the ostensible partner.

In addition to the commercial corporations, the Brazilian Civil Code has instituted simple society to replace the civil societies, encompassing societies that do not exert typical entrepreneur activities subject to registration, that is, non corporate activities or rural entrepreneur activities. Hence, in accordance with the developed activities, one may construe that a society in Brazil shall always be considered simple or corporate.

Yes. A simple society may fit into the format of a Collective Name General Partnership, a Company with Mixed Limitation Managers/Non-Managers, or a Limited Company. However, it may also not chose any of these types of society, being subject to the regulations inherent to the simple societies.

In practical terms, a simple society will hardly ever be chosen. The limited company will usually be the preferred form, given its simple constitution and functioning, allied to the limitation of the shareholders’ liabilities.

No. The Brazilian Laws allows establishment of a Brazilian company, composed exclusively of foreign partners, provided it has a Brazilian administrator or a foreign one with a permanent visa - RNE.

The partners are free to chose who will be the company’s administrator, who does not have to be a partner, and may even be one o four attorneys.  However, that manager must be a Brazilian national or a foreigner with a permanent visa - RNE.

Once the administrator is chosen, the partners may dismiss him from that role at any time.

• Company’s financial management.
• Bank accounts management.
• Representation of the company before the Federal, State and Municipal authorities.
• Payment of taxes and fees pursuant to the company’s activity.
• Accounts rendering of his management and personal response for his acts, abusive management, and other acts against the company’s goals.

In order to open a Brazilian company with foreign capital, the following phases must be completed:

• The company shall be composed of at least two partners, not necessarily Brazilian, provided there is a Brazilian administrator, who does not necessarily have to be a national.
• Partners’ documentation: Copy of the following documents: passport, evidence of residence in the home country, CPF, etc.
• Devising of an agreement of the type of society allowed in Brazil, and its registration before the competent authority.
• Registration of the corporation before the Brazilian Ministry of Treasury - CNPJ.
• Individual registration of the foreign citizen before the Central Bank of Brazil.

• As capital pay-in – Corresponds to the capital that must be invested in the company, and foreseen in its bylaws. This money shall come from a personal bank account of each partner abroad, directly into a bank account in Brazil. The partners may use this amount to pay for company expenses, purchase of assets, among others.
• As a loan (Loan Agreement) – Both the foreign company and the foreign investor may lend money to a Brazilian company. For such purpose, it is necessary that the investor is duly registered before the Central Bank. In the case of foreign companies, it shall be registered in Brazil (before the Ministry of Treasury), as well as before the Central Bank of Brazil, that is, it shall hold a CNPJ and a Registry of Financial Operations (ROF - registration de Operações Financeira).

Yes. It will be necessary to obtain a taxpayer number called CNPJ – Cadastro Nacional de Pessoa Jurídica (Corporate Taxpayer Registration). The company’s registration shall e formalized by means of registration at the Exchange and Foreign Capitals Department Company Registration Area (CADEMP - Cadastro de Empresas do Departamento de Capitais Estrangeiros e Câmbio) to be applied for before the Central Bank of Brazil.

In order to register, the company must submit a copy of its bylaws or articles of incorporation, notarized by the Brazilian consulate at the country of origin, and translated by a Brazilian sworn translator.

No. There are no restrictions to the remittance of profits for foreign capital companies, provided the remittance is registered before the Central Bank System. Brazil has signed treaties to avoid double taxation with the following countries: Sweden, Japan, Norway, Portugal, Belgium, Denmark, Spain, Germany, Austria, Luxemburg, Italy, South Korea, Czech Republic, Slovak Republic, Finland, Hungary, India and China.

The National Immigration Council (CNI) edited the Normative Resolution 84/09, which changed the time and the minimum value required for the granting of visas to foreign investors.

In accordance with the new  rule, visas will be granted with a term of three years, and the value of the investment required is R$ 150 thousand. For the old standard, the period’s visa was five years and the value of the investment of R$ 50 thousand. See the full resolution:

MINISTRY OF LABOR AND EMPLOYMENT NATIONAL IMMIGRATION COUNCIL NORMATIVE RESOLUTION Nº 84, FEBRUARY 10, 2009.

Discipline the granting of authorization for purposes of obtaining a permanent visa to foreign investor - individual.

THE NATIONAL IMMIGRATION COUNCIL, instituted by Act. nº 6.815, August 19, 1980 and organized by Act. nº 10.683, May 28, 2003, in the use of the powers conferred upon it by Decree nº 840, June 22, 1993, solves:

Article 1 The Ministry of Labor and Employment may authorize the granting of permanent visa to the foreigner who wishes to set up in Brazil in order to invest own resources of external origin in productive activities.

Sole Paragraph. These are investments that, because the number of foreign investors, entailing substantial economic or social impacts to the country, the election may be sent by the Ministry of Labor and Employment to the National Immigration Council for decision.

Article 2 The authorization for grant permanent visa to foreigners is conditional on the evidence of investment, in foreign currency, in amount equal to or greater than R$ 150.000,00 (one hundred and fifty thousand real).

1º This rule applies to new company or existing.

§2 In assessing the application will be examined priority the social interest, characterized by the generation of employment and income in Brazil, the increase in productivity, the assimilation of technology and the raising of funds for specific sectors.

§ 3 The National Immigration Council may change the minimum value of  investment established at the caput of this article by means of Administrative Resolution.

Article 3 The National Immigration Council may authorize the granting of permanent visa for the entrepreneur wishing establish itself in Brazil to invest in productive activity, even if the investment is lower than expected in the caput of article 2 of this Resolution Normative.

§1 In the application, will be verified the interest of social investment as the following criteria:

I - number of jobs generated in Brazil, by presenting the Investment Plan, which contains program to generate jobs to brazilians;

II - the value of the investment and the region of the country where it will be applied;

III - the economic sector where the investment occurs, and

IV - contribution to higher productivity and assimilation of technology.

§2 In its decisions, the National Immigration Council will take into consideration especially the  investments from entrepreneurs nationals of countries in South America.

Article 4 The request for authorization to grant permanent visa should be instructed by the following documents:

I - application model itself;

II – procuration by a public instrument, when the foreign investor is being represented;

III - social contract or act of incorporation of the company benefited by the investment, registered with the competent organ, the foreign capital invested properly;

IV - SISBACEN - declaratory registration of foreign direct investment in Brazil or contract of exchange issued by the recipient of investment bank, in codes of nature that characterize the foreign direct investment in the Regulation of Foreign Exchange and Capital Market
International - RMCCI;

V - original proof of collection of individual immigration on behalf of the applicant company;

VI - receipt of delivery of the declaration of income tax of the last fiscal year of the applicant, when applicable, and

VII - Investment Plan that meets the requirements of §2 of article 2 of this Resolution Normative.

Sole Paragraph. Understand where applicable, the General Coordination of Immigration / TEM may request diligences in loco, by supervision of Regional Superintendents of Labor and Employment or by Department of Federal Police.
Article 5 The Ministry of Labor and Employment will communicate the Ministry of Foreign Relations the authorizations, for grant the visa abroad by diplomatic missions, consular offices career and vice-consulates.
Article 6 Will appear in the first ballot of Identity of Foreign - CIE the condition of the investor and the period of validity for three years.

Article 7 The Department of Federal Police replace CIE when the expire date, establishing its validity in accordance with Act.N8.988, February 24, 1995, upon proof that the foreign investor continues in Brazil, with

I - proof of payment of the fee on the replacement of the CIE;

II - Identity of Foreign ballot - CIE original;

III - copy of the legal act governing the legal person, duly registered with the competent body;

IV - Declaration of Income Tax of the company's last fiscal year and the receipt of delivery;

V - copy for the Annual Social Information - RAIS on the last two years, showing compliance with the generation of jobs provided in the Investment Plan, if applicable, and

VI - copy of the latest guide to collection of the Guarantee Fund of the Time Service - FGTS, appear the relationship of employees.

§ 1 Where appropriate view, the Department of Federal Police may effect diligences in loco, for establishing the physical existence of the company and the activities that is acting.

§ 2 The replacement of the CIE should be request until your expiration, under penalty of cancellation of registration as permanent.

Article 8 This Normative Resolution enters into force on the date of its publication.

Article 9 It repealed Resolution Normative Nº 60 2004.

PAULO SÉRGIO DE ALMEIDA
President of the National Immigration Council
Published in DOU Nº 31, February 13, 2009.