Luciana Magnolo Onofre
Lawyer at Marcos Martins Advogados
When we think of succession planning or family planning, we think of a corporate structure that involves the management of assets or the possibility of equity participation in other operating companies, but which will hold the family assets and determine how the operating companies are managed. The corporate structure we are dealing with is the holding company .
In the process of setting up holding companies, considering the central idea of managing family assets or family nuclei, it is common for their owners to transfer assets or rights to form their capital, which will become partners or shareholders.
For the payment of capital, via the transfer of assets, the owners may consider any assets that can be valued in cash.
In this context, although Normative Instruction 81 of the DREI – National Department of Business Registration and Integration has been in force since 2020, it was not common for the Boards of Trade to require any additional documentation in the corporate acts when transferring capital for real estate.
However, with greater emphasis in 2022, the Boards of Trade began to require compliance with the DREI regulations, requiring the consent of the spouse in the corporate act or the presentation of a declaration in a separate act to the corporate act, under penalty of rejection of the application for registration, except, however, if the spouses are married under the regime of absolute separation of property.
The measure brings greater legal certainty to the operation, as it requires the knowledge and consent of the spouse so that the formation of capital, by means of a conference of assets, is no longer subject to future questioning, thus complying with the rule laid down in the Civil Code on the disposal of real estate in joint assets.
This is because, when the real estate is transferred to the capital, the holding company will have ownership of the asset and, thus, the spouse’s declaration or consent makes its transfer unquestionable, which legitimizes the consolidation of the formation of the share capital and the management of the asset by the holding company.
It is important to note that, although the transfer of real estate often occurs for the formation of capital in family holding companies, the Normative Instruction mentioned above is not restricted to companies with this purpose and must be observed for any and all procedures for the formation of capital in companies that involve the transfer of real estate, whether in acts of incorporation or amendment of the current articles of association by means of a capital increase.
Marcos Martins Advogados reaffirms its commitment as a Business Partner, seeking strategic solutions, always attentive to the legal changes that impact its clients and meeting their needs.
