Brazilian law provides that the partners/shareholders of Brazilian companies shall meet annually to review the management accounts, discuss and vote the financial statements and decide on the destination of the year-end results, as well as appoint officers and/or board members and also members of the audit board.
The annual meetings must be held within the first 4 months after the end of the fiscal year. In Brazil, the fiscal year-end usually coincides with the end of the calendar year and, therefore, the annual partners/shareholders meeting shall normally be held until April 30th of each year.
Limited liability companies
In relation to limited liability companies, the financial statements must be disclosed to the non-manager partners before the annual meeting. The decisions taken in such meeting shall be formalized in minutes, which must be registered with the competent Board of Commerce.
Currently, the publication of the financial statements of “large-sized” limited liability companies in the Official Gazette and in regular newspapers is optional and may no longer be required by the Boards of Commerce, making the procedure faster and less burdensome[1]. According to Law No. 11,638/07, large-sized companies are defined as the ones which had, in the last fiscal year, total assets greater than BRL 240 million or a gross income greater than BRL 300 million.
In this regard, the Board of Commerce of the State of São Paulo (JUCESP) is currently not requiring “large sized” limited liability companies headquartered in the State of São Paulo to publish their financial statements, nor to waive such publication through the submission of a declaration of non-qualification as a large sized limited liability company[2], according to the provisions of SEI Circular Letter No. 4742/2022/ME.
Corporations
Corporations must, as a rule, publish their financial statements at least 1 month before the date of the Annual Shareholders’ Meeting (AGO), in which the relevant decisions will be taken and, later, file such financial statements with the Board of Commerce in case the information related to the publication are not detailed in the minutes of the AGO.
Corporations may, alternatively, publish a notice to the shareholders within the same term previously mentioned (at least 1 month) informing that the financial statements are available at its headquarters, and publish them at least 5 days prior to the AGO. If all shareholders attend the meeting, such terms can be dismissed, but the publication of the financial statements must be done prior to the AGO anyway.
The minutes of the AGO must be registered with the competent Board of Commerce and then published.
In relation to the legal publications mentioned above, since 2022, corporations are no longer required to publish their corporate documents in official press. In general corporations shall now publish the required documents only through a major newspaper, in summarized form, with simultaneous disclosure of the full text of the documents on the web page of the same newspaper.
In addition, privately held corporations with gross revenues of up to BRL 78 million may alternatively publish the required documents, including the call notice and financial statements, free of charge and electronically, in the Public Digital Bookkeeping System – SPED. It is important to mention that privately held corporations no longer need to release their publications on their website, as previously requested by regulation.
Publicly held corporations must also comply with the provisions established by the Resolution of the Brazilian Security Exchange Commission (CVM) No. 81, dated as of March 29th, 2022, as amended (RCVM 81) and the guidelines issued by the Annual Circular Letter 2023 CVM/SEP, published by CVM’s Superintendence of Corporate Relations on February 28th, 2023.
Digital corporate books
As of 2021, DREI Normative Ruling No. 82 (IN 82) has established the mandatory use of exclusively digital corporate books and determined that new paper books, filled in or blank (models previously used by companies in Brazil), should no longer be submitted for authentication by the Boards of Commerce. The Boards of Commerce have been going through a period of transition and adapting their systems to comply with the provisions of IN 82.
For corporations that must hold the AGO for the annual approval of their financial statements, as explained above, and subsequently draw up the respective minutes in their corporate books, this is a good opportunity to digitalize their corporate books and modernize the drawing up of other corporate acts in compliance with this legal requirement.
Our team will be pleased to assist you with the draft of the corporate documents required to formalize the approval of the 2023 accounts as well as to discuss alternatives for starting the process of digitalizing your companies’ corporate books.
[1] Circular Letter (Ofício Circular) SEI No. 4742/2022/ME published by the Ministry of Economy on November 25, 2022.
[2] JUCESP Normative Ordinance No. 29/2023, of April 24, 2023 revoked JUCESP Resolution 01/2022 which provided for mandatory publications or exemption from them upon the submission of a declaration of non-qualification as a large sized limited liability company.
