Investment Funds 2024 Comparisons

Last Updated February 08, 2024

Law and Practice

Authors



Machado Meyer Advogados has an investment funds practice that is vastly experienced in handling matters relating to all kinds of funds, such as private equity funds (FIPs), asset-backed securities investment funds (FIDCs), infrastructure private equity funds (FIP-IEs) and real estate investment funds (FIIs). The firm handles the structuring and formation of funds, the offering of fund quotas (public offerings) and the setting-up of credit assignment frameworks under FIDC structures, as well as advises on funds governance and intricate regulatory matters. Machado Meyer’s funds practice is enhanced by the expertise of the firm’s partners and associates in other areas, and its impressive clientele includes banks, national and international funds, investment banks, hedge funds, fund managers and private equity funds.

The investment funds market in Brazil is very active and has become more sophisticated in the last decade, especially with the enactment of CVM Resolution 175 of 23 December 2022, which completely changed the regulatory framework applicable to investment funds in Brazil.

The rise in the interest rate in the last couple of years, following a rise in inflation and other market speculations, has caused retail investors to avoid risks with variable income investments, which has led to further investment in fixed-income assets.

According to publicly available data published by the Brazilian Financial and Capital Markets Association (ANBIMA), the consolidated net equity of investment funds amounted to BRL8.2 trillion as of 30 November 2023, representing an increase of 10% in the last 12 months, despite the investment funds industry having reached a negative net funding (difference between investments and redemptions) of BRL177.4 billion, which possibly reflects the instability of the capital market in Brazil in 2023.

According to the latest ranking from the International Organization of Securities Commissions (IOSCO), Brazil is the fourth major capital market in the world in terms of investment funds industry.

Notwithstanding the negative result in net funding in 2023 for the total funds industry, alternative funds had positive results with investments in FIDCs totalling BRL22.8 billion and investments in FIPs totalling BRL44.1 billion (until November 2023). With the government’s intention to reduce the interest rates for 2024, the perspective for 2024 is positive for alternative funds.

The changes promoted by CVM Resolution 175 and recent tax reforms, which also bring beneficial changes for foreign investors, are expected to have a positive impact for the investment funds industry in 2024.

CVM Resolution 175 represents an important milestone for the evolution of the funds industry in Brazil, with a view towards reducing bureaucracy and costs, and increasing security for investors, bringing the industry closer to practices adopted in other jurisdictions – including, for example:

  • limitation of the liability of investors (up to the limit of the value of their quotas);
  • the creation of different classes of quotas that may track specified assets of the portfolio; and
  • the application of insolvency rules provided for legal entities in general (ie, investment funds are directly responsible for their legal and contractual obligations).

Investment funds in Brazil are regulated by the CVM under Federal Law No 6,385 of 7 December 1976 (the “Securities Law”) and the Brazilian Civil Code. The CVM is a governmental agency of the Ministry of Economy and is responsible for, inter alia, monitoring the investment funds industry and issuing regulations.

Resolution CVM 175 comprises a general part applicable to all categories of investment funds in Brazil, and contains annexes with specific rules applicable to the different categories of investment funds, such as:

  • financial investment funds (FIFs – ie, fixed-income funds, equity funds, multi-market funds and foreign-exchange funds);
  • asset-backed securities funds (FIDCs);
  • private equity funds (FIPs); and
  • real estate funds (FIIs).

Brazilian investment funds are organised as a special condominium – ie, a pool of financial assets jointly owned by the holders of interests in the fund, called “quotas”, under the structure of a co-ownership. The funds can be organised as an open-ended condominium (ie, redemption of quotas allowed during the fund’s term of duration) or a closed-ended condominium (ie, no redemption of quotas is permitted until the end of the fund’s term of duration or in the case of its early liquidation). Alternative funds are generally set up as closed-ended condominiums.

Pursuant to CVM Resolution 175, all funds will be entitled to create different classes of quotas with different economic and political rights, and with segregation of net worth. Subclasses of quotas will also be permitted only with respect to:

  • target public;
  • terms and conditions for investment, amortisation and redemption; and
  • administration, management, maximum distribution, entry and exit fees.

Other economic rights and political rights pertaining to subclasses of restricted classes (ie, those exclusively targeted at qualified and professional investors) may be included in the fund’s by-laws. The possibility of implementing different classes and subclasses of quotas as set forth in CVM Resolution 175 will enter into force on 3 April 2024.

Private Equity Funds (FIPs)

Currently regulated by CVM Resolution 175, FIPs are organised in the form of a closed-ended condominium restricted to qualified investors. FIPs are allowed to invest in shares, debentures, warrants and convertible debt securities issued by listed and unlisted companies. FIPs shall participate in the decision-making process of invested companies and have effective influence in the definition of their strategic polices and management (the “Influence Test”). FIPs are classified into the following categories.

  • Seed Capital FIPs are allowed to invest in corporations or limited liability companies with gross revenue of up to BRL20 million in the fiscal year prior to the fund’s investment.
  • Emerging Companies FIPs are allowed to invest in corporations with gross revenue of up to BRL400 million in the fiscal year prior to the fund’s investment.
  • Infrastructure (FIP-IE) and Intensive Economic Production in Research, Development and Innovation (FIP-PD&I) FIPs are allowed to invest in corporations that develop new infrastructure or intensive economic production in research projects in the energy, transportation, water and sanitation, and irrigation sectors, and in other priority areas as determined by the federal government. Brazilian regulation defines “new projects” as those implemented after 22 January 2007 and expansions of existing or implemented projects, or projects in the process of implementation, provided that the investments and results of the expansion are segregated by means of the formation of a specific purpose company. Such funds shall have at least five quotaholders, each of whom may not hold more than 40% of the quotas issued by the fund nor have the right to earn income exceeding 40% of the total income of the fund.
  • Multi-Strategy FIPs are the most common form used in the Brazilian market and may invest in different types and sizes of companies. A Multi-Strategy FIP targeted at professional investors may invest up to 100% of its subscribed capital in foreign assets.

FIPs may have classes of quotas with different economic and/or political rights, subject to the applicable regulation. As of April 2024, different classes of quotas will be entitled to “track” specified assets of the portfolio of the FIP.

Asset-Backed Securities Funds (FIDCs)

FIDCs may be organised as open-ended or closed-ended condominiums. Annex II of CVM Resolution 175 consolidates the rules applicable to FIDCs and FIDC-NPs (non-standard asset-backed securities funds) into a single regulation. CVM Resolution 175 allows non-qualified investors (retail) to subscribe/acquire senior quotas of the standard FIDCs. The subscription of quotas of a FIDC that allows investment in non-standard receivables is restricted to professional investors.

FIDCs may invest in receivables such as credit rights and underlying instruments originating from transactions in the financial, commercial, industrial, real estate, mortgage, leasing and service segments. A FIDC that allows investment in non-standard receivables may also invest in receivables such as litigated claims, government bonds and overdue receivables. FIDCs may have different classes of quotas (senior and subordinated). Senior quotas have priority in the amortisation and redemption of quotas, while the other classes of quotas will be subordinated to the senior quotas for amortisation and redemption. As per Resolution CVM 175, other economic and political rights may be attributed to FIDCs’ classes of quotas.

Real Estate Funds (FIIs)

FIIs are organised in the form of a closed-ended condominium and invest in real estate developments. FIIs may be targeted at general investors (retail) or at qualified investors.

Quotas of FIIs may be divided into series, with the specific purpose of establishing different dates for the payment of the quotas by the holders of each series of quotas. Quotas targeted at qualified investors may be divided into different classes with certain limitations. As of April 2024, quotas of FIIs will be allowed to be divided into different classes with different economic and political rights, and with segregation of net worth.

All Brazilian investment funds must be registered with the CVM, regardless of whether their quotas are subject to a public or private offer, or whether they are open-ended or closed-ended condominiums.

In order to set up alternative investment funds in Brazil, there should be a constitutive act from the administrator and the manager approving the formation of the fund and its by-laws. A minimum set of documents should be filed with the CVM for the registration of the fund, as per the applicable regulation.

CVM Resolution 175 sets forth that the registration of the fund will be granted automatically by the CVM upon filing of the required documents with the CVM through its electronic system.

Currently, the enrolment of the fund on the Federal Revenue Office taxpayer’s register is made concurrently with the registration of the fund with the CVM.

The public placement of quotas requires intermediation by a company pertaining to the so-called Brazilian Securities Distribution System. For closed-ended investment funds, such placement must also be registered with the CVM.

Such registration shall be effected pursuant to the Securities Law and CVM Resolution 160 (which replaced CVM Instruction No 400/2003 and CVM Instruction No 476/2009). Public offerings in Brazil follow the definition found in other jurisdictions – ie, a public offering takes place whenever it is directed to an undetermined group of people. The ordinary registration process with the CVM may take from four to six months on average. Public offerings are also subject to several other requirements, including:

  • publication of a prospectus with respect to the offering of quotas to retail and qualified investors (not applicable to offerings to professional investors);
  • publication of offering announcements;
  • the payment of a supervisory fee to the CVM; and
  • adherence to conduct rules under CVM Resolution 160 (such as silence period rules, and full and proper disclosure).

The placement of quotas of closed-ended investment funds targeted at qualified and professional investors is subject to an automatic offering registration process with the CVM, pursuant to CVM Resolution 160. In such cases, there are no limitations with respect to the maximum number of investors to be assessed. A lock-up period may apply if the quotas of the investment fund subject to an automatic offering registration process with the CVM are subsequently traded to a different category of investors (eg, in the case of a fund/class of quotas targeted only at professional investors, no lock-up period will apply if they are traded to other professional investors; but a 180-day lock-up period will apply if they are traded to qualified investors and a 12-month lock-up period will apply if they are traded to retail investors).

Liability is limited to the value of the quotas held by each investor, provided that such limitation is expressly provided in the fund’s by-laws. Otherwise, quotaholders will be liable for any negative equity of the fund, meaning they could be called to invest more in the fund than their original committed capital.

Considering that the quotaholders’ liability shall be disciplined in the annexes of each class of quotas (as part of the fund’s by-laws), it is possible for the same fund to create different classes of quotas with unlimited and limited liability.

CVM Resolution 175 has a chapter dedicated to the procedures to be observed by administrators and managers upon the verification that the net equity of a class of quotas with limited liability is negative.

Pursuant to CVM regulations, investment funds must disclose a variety of information to the CVM, the market or the quotaholders.

Any disclosure of information to quotaholders must be comprehensive, equitable and simultaneous, and the following materials must be made available on electronic channels and on the website of the administrator, the distributor (while the distribution is in progress) and, if applicable, the managing entity of the organised market where the quotas are admitted for trading:

  • the updated fund’s by-laws;
  • an updated essential information sheet (lâmina), if any;
  • the performance history;
  • the voting policy; and
  • a description of the applicable taxation.

Any marketing materials and other information provided to investors in public offerings must be:

  • true, complete, consistent and not misleading;
  • written in simple, clear, objective and concise language; and
  • useful for investment evaluation.

The information cannot guarantee or suggest the existence of a guarantee of future results or risk exemption for the investor. Factual information must be accompanied by an indication of sources and differentiated from interpretations, opinions, projections and estimates.

The administrator of the fund is responsible for disclosing the following:

  • the value per quota and the net worth of the open-ended funds (daily or at a frequency compatible with the liquidity of the fund);
  • a statement containing information on the fund and the quotaholder (monthly or at other intervals as provided in the fund’s by-laws) to each quotaholder, including the balance and value of the quotas at the beginning and the end of the period;
  • general information about the fund, including regarding the portfolio; and
  • the performance statement of the fund, pursuant to the requirement of CVM regulations.

The administrator should also submit other documents to the CVM and, where applicable, to quotaholders and to the organised market where the quotas are admitted for trading, such as:

  • daily and monthly newsletters;
  • quarterly and biannual statements regarding the portfolio composition and diversification;
  • the annual accounting statements accompanied by the independent auditor’s opinion; and
  • a standard form with basic information about the fund, whenever there is an amendment to the by-laws.

Where the quotas are admitted for trading, the administrator should also immediately disclose to the quotaholders, the CVM and the organised market any relevant act or fact that occurred or is related to the functioning of the fund or the assets that are part of the portfolio, which might reasonably influence the value of the quotas or the decision of the investors to acquire, sell or keep such quotas.

The following investors have been active in alternative investments:

  • institutional investors, notably development banks, other financial institutions and pension funds;
  • foreign investors, including sovereign funds and private equity funds of funds;
  • family offices; and
  • high net worth individuals (qualified or professional investors).

Please see 2.1.1 Fund Structures for the legal structures typically used by alternative fund managers in Brazil.

According to Brazilian law, investment funds shall generally have a fiduciary administrator (principal fund “gatekeeper”) and an asset manager (responsible for the investment and divestment decisions, subject to the limitations set out in the fund’s by-laws), both of which are duly authorised by the CVM to provide securities portfolio-management services.

The fiduciary administrator shall be a legal entity, while asset managers may be either an individual or a legal entity (for FIPs, the manager shall be a legal entity in any event). In addition, entities may be registered as “full administrators”, which means they can act as both fiduciary administrator and asset manager, provided they comply with the Chinese wall requirements.

CVM Resolution No 21 of 25 February 2021 sets forth the minimum criteria applicable to fiduciary administrators and asset managers, including that they must be domiciled or have their headquarters in Brazil.

FIIs may be administered by:

  • commercial banks;
  • multiple banks with investment portfolios or real estate loan portfolios;
  • investment banks;
  • brokerage companies or securities dealerships;
  • real estate credit companies;
  • savings banks; or
  • mortgage companies.

Investors are divided into three categories in Brazil:

  • professional investors;
  • qualified investors; and
  • non-qualified investors.

According to current CVM regulation, FIPs and FIDCs are restricted to qualified investors, while FIIs can also be marketed to non-qualified investors (ie, retail investors). As mentioned in 2.1.1 Fund Structures, CVM Resolution 175 allows senior quotas of FIDCs to be targeted at non-qualified investors.

CVM Resolution No 30/2021 sets forth the criteria for qualified investors (including individuals or legal entities that hold financial investments in an aggregate amount exceeding BRL1 million) and professional investors (including individuals or legal entities that hold financial investments in an aggregate amount exceeding BRL10 million and non-resident investors).

Non-professional or non-qualified investors are considered retail investors.

For more information on the regulatory regime applying to alternative funds in Brazil, please see 2.1.1 Fund Structures.

ANBIMA (a private and voluntary self-regulatory association) establishes rules for the market regarding enforcement and control, as well as codes of best practice for its members (which include asset managers, banks, brokers, securities dealers and investment advisers). It monitors the application of such codes and issues penalties for non-compliance.

Brazilian regulations set forth rules regarding the composition of the portfolio of alternative funds and certain limitations, as summarised below.

FIPs

A FIP must maintain at least 90% of its net assets invested in securities (the “90% Rule”), which will not apply during the term set forth in the regulations for the FIP to consummate an investment after a capital call. For purposes of the 90% Rule, the regulations set forth that amounts may be added to the net assets invested in securities, such as amounts for the payment of the FIP’s expenses (limited to 5% of the committed capital), funds deriving from a divestment (subject to certain conditions), etc.

If the issuer of the securities targeted by the FIP is a privately held company, certain governance requirements must be observed by such issuer.

There is no maximum or minimum number of companies in which a FIP may invest, nor is there a maximum or minimum percentage of shares (ie, equity interest) that a FIP must hold in an invested company, provided in any case that the Influence Test is met and subject to certain concentration limits.

FIPs may invest up to:

  • 33% of their subscribed capital in foreign assets (securities), unless the fund is targeted at professional investors, in which case the FIP may invest up to 100% of its subscribed capital in foreign assets; and
  • 33% of their subscribed capital in non-convertible debentures or other non-convertible debt instruments, except for FIP-IEs, which may invest up to 100% in such debt instruments.

FIPs may invest in quotas of other FIPs or of equity funds. FIPs may not invest in credit rights – except those issued by invested companies of the fund.

FIDCs

FIDCs may acquire credit rights and other assets of the same debtor, or a co-obligation of the same debtor, within the limit of 20% of its net equity. This limit may not be applied if the fund is targeted at professional investors. The limit may also be increased if certain requirements are met (eg, the debtor is a publicly-held company or has financial statements audited by an independent auditor registered with the CVM). The fund may acquire credit rights originated or assigned by the administrator, manager, custodian or specialised consultant, or by parties related to them in certain situations, namely:

  • when the manager, registering entity and custodian of the credit rights are not related parties between themselves, and, cumulatively, the registrar and the custodian are not parties related to the originator or assignor; and
  • in the case of classes of quotas intended exclusively for professional investors.

Other rules regarding the composition of the portfolio and limitation on investment by issuer and by type of investment can also be included in the fund’s by-laws.

FIIs

The properties, assets and use rights to be acquired by FIIs must be subject to prior evaluation by the administrator, the manager or an independent third party, subject to the requirements set out in the regulations. FIIs that invest predominantly in securities must respect the limits of application by issuer and by type of financial assets established in the general rules on investment funds. Such limits do not apply to investments by FIIs in quotas of FIPs, FIIs, certificates of real estate receivables and quotas of FIDCs.

FIIs can maintain a portion of their assets permanently invested in investment funds or fixed-income securities, public or private, to meet liquidity needs.

The main service providers, such as the fiduciary administrators, asset managers, custodians and bookkeepers, have to be established in Brazil and be duly authorised by the CVM (with the exceptions applicable to FIIs) or by a recognised local authority.

Administrators and portfolio asset managers must comply with the requirements of CVM Resolution 21, as explained in 2.2.2 Legal Structures Used by Fund Managers.

Please see 2.3.2 Requirements for Non-local Service Providers.

Please see 2.1.2 Common Process for Setting Up Investment Funds.

Conduct rules set forth in CVM Resolution 160 apply, specifically silence period rules, which set forth that the offer participants are expressly prohibited from publicising the public offering, including through statements regarding the fund, in the following periods:

  • beginning at the moment in which the public offer was approved by means of a deliberative act, or on the 30th day prior to the filing of the request for registration of the offer with the CVM, whichever is earlier; and
  • ending on the date of announcement of the closing of the public offering (quiet period).

The marketing and distribution of quotas of investment funds in Brazil are made by members of the Distribution System.

Under the applicable regulation, the asset manager may act as the distributor of quotas of the funds under its investment management or administration, subject to the adoption of certain procedures and policies applicable to distributors.

All marketing materials of investment funds must:

  • be clear and concise;
  • contain specific disclaimers and information regarding the fund’s by-laws; and
  • alert the investors of the investment risks.

Conduct rules set forth in CVM Resolution 160 also apply (such as silence period rules, full and proper disclosure, etc).

In the case of open-ended investment funds targeted at retail investors, the administrator must prepare an essential information sheet, including information such as:

  • target investors;
  • the fund’s purpose;
  • the investment policy;
  • risks; and
  • profitability.

Please see 2.2.3 Restrictions on Investors for more information on the investors to whom alternative funds can be marketed in Brazil.

Notification is required only after the use of marketing material as permitted under CVM Resolution 160, which shall be sent to the CVM within one business day after its use.

During the period between the beginning of the quiet period (as indicated in 2.3.5 Rules Concerning Pre-marketing of Alternative Funds) and the date of disclosure of the notice to the market, the offer participants must limit the disclosure and use of information regarding the public offer strictly to the purposes related to the preparation of the public offering, warning recipients about the reserved nature of the information transmitted.

After the beginning of the market-offering period, the offering participants may widely publicise the public offering, provided that the conditions set forth in CVM Resolution 160 are observed, including by means of disseminating:

  • the prospectus and offer sheet;
  • material of an explanatory and educational nature that contains useful and relevant aspects;
  • marketing material;
  • presentations to investors, including supporting documents for such presentations; and
  • media interviews.

The permitted communications must:

  • be consistent with the content of the prospectus and the issuer’s periodic information required by the legislation in force;
  • use calm and moderate language; and
  • observe the principles of quality, transparency and equity of access to information.

The permitted communications must refrain from:

  • using language that omits or does not adequately reflect the existence of risks;
  • containing statements that remove the responsibility of the offeror and the institutions participating in the distribution consortium regarding the information provided;
  • stating that it is not a public offer;
  • stating that the information contained in the communication is confidential;
  • containing language of a contractual nature that implies a perception of tacit consent to a reservation or placing an order; and
  • using information that is false or inaccurate, or that misleads the investor.

Please see 2.2.3 Restrictions on Investors for more information on the restrictions relating to certain categories of investors in certain types of alternative investment funds.

The administrator and the manager of an investment fund have fiduciary duties towards the fund and its quotaholders, and shall be liable for any damages caused to the quotaholders in the case of non-compliance with the fund’s by-laws or the applicable laws and regulations.

The CVM may apply penalties to service providers for any violation of the fund’s by-laws or the applicable laws and regulations – including fines, suspension of authorisation or registration for the exercise of the administration and/or management activities, or temporary disqualification to carry out such activities, up to a maximum of 20 years.

The CVM usually responds to day-to-day questions by email within a reasonable timeframe, and is also open to virtual or face-to-face meetings, which may be requested online through the CVM’s website. Complex queries should be submitted to the CVM by means of a formal consultation, which may take longer for the CVM to respond to. Filings of registration processes are all done electronically through the CVM’s website.

Each alternative fund is allowed to invest in certain types of assets, as provided by its specific regulation. For types of investments and the applicable regulation for each alternative fund, please see 2.1.1 Fund Structures and 2.3.1 Regulatory Regime.

Pursuant to Brazilian regulations, investment funds must engage a custodian duly authorised by the CVM, which will be responsible for managing the bookkeeping of the investment fund’s assets. For FIIs, the custody service is not required for financial assets that represent up to 5% of the fund’s net equity, provided that such assets are admitted for trading on a stock exchange or organised over-the-counter market, or are registered in a registration or financial settlement system authorised by the Central Bank of Brazil or the CVM.

The main regulations regarding risk, borrowing restrictions and the valuation and pricing of the assets held by investment funds are set up by CVM Resolution 175, as described in 3.4 Operational Requirements.

In addition to the general rules, Normative Annex IV of CVM Resolution 175 provides that FIPs that obtain direct financial support from development agencies are authorised to contract loans directly from such development agencies, limited to an amount corresponding to 30% of the FIP’s assets. In addition, the FIP’s administrator and asset manager may contract a loan on behalf of the fund only in cases authorised by the CVM (in practice, a consultation should be submitted to the CVM requesting authorisation for such borrowing) or to cover the default of quotaholders who have not paid their subscribed quotas. The last case will also be applied to classes of quotas destined for qualified or professional investors of all other categories of funds as set forth in CVM Resolution 175.

As for FIDCs, the administrator may not currently borrow or grant loans on behalf of the fund, which only allows the granting of loans and the assumption of debts as a result of transactions carried out in the derivative market.

FIIs are not currently allowed to borrow or grant loans. They may borrow their equities and securities, provided that such loans are processed exclusively through services authorised by the Brazilian Central Bank or the CVM, or are to provide guarantees for their own operations.

Also, for each type of alternative fund, the CVM regulates the accounting standards for the recognition, classification and measurement of assets and liabilities, as well as those for:

  • valuation;
  • pricing and revenue recognition;
  • the appropriation of expenses; and
  • the disclosure of information in the financial statements for each investment fund.

These are expressly provided by the following:

  • CVM Instruction No 579 of 30 August 2016 for FIPs;
  • CVM Instruction No 489 of 14 January 2011 for FIDCs; and
  • CVM Instruction No 516 of 29 December 2011 for FIIs.

According to Brazilian law, insider dealing and market abuse are illegal activities subject to administrative, civil and criminal sanctions. CVM penalties for such activities include warnings, fines and suspension, and even prohibition from trading in the capital markets.

Please see 2.4 Operational Requirements.

Based on the fact that an investment fund does not present a formal corporate existence, being classified only as a flow-through entity in Brazil, it is not considered a legal entity for Brazilian tax purposes and is subject to special income tax treatment.

In this context, an investment fund can invest in different assets and sell the investments with gains. Such gains will not be subject to Brazilian taxes at the level of the investment fund, but they may be taxed upon their distribution to investors.

FIPs

Pursuant to Law No 11,312/2006, gains and earnings obtained by the investors of a FIP whose portfolio is compliant with CVM regulations are generally subject to withholding income tax (WHT) at a 15% rate. Law 11,312 also established a specific tax treatment applicable to foreign investors who invest in a FIP by means of the mechanisms provided for by Resolution 4,373 issued on 29 September 2014 by the National Monetary Council, provided that certain requirements are met. Under the specific tax treatment, gains and earnings recognised by foreign investors as a result of the amortisation, redemption or sale of the FIP quotas are subject to WHT at a 0% rate.

The legal requirements to avail of the specific tax treatment afforded to foreign investors have been significantly changed by Law 14,711/2023, which was enacted on 30 October 2023.

The legal requirements originally set forth by Law 11,312 and the ones set forth by Law 14,711/2023 for application of the specific tax regime are as follows.

Residence of investors

  • Original legal requirements – Law 11,312: quotaholders domiciled or resident in a low tax jurisdiction, as defined by Brazilian legislation, do not benefit from the special regime.       
  • New requirements – Law 14,711: quotaholders that are domiciled or resident in a low tax jurisdiction still cannot benefit from the beneficial regime (an exception is made for sovereign funds).

FIP portfolio

  • Original legal requirements – Law 11,312: at least 67% of a FIP’s portfolio should be represented by shares of corporations (SA), convertible debentures or warrants, and the FIP cannot have, at any time, debt bonds equal to or higher than 5% of its net assets (not including public bonds or convertible securities).
  • New requirements – Law 14,711: a FIP’s portfolio should observe CVM regulations.

40% Test

  • Original legal requirements – Law 11,312: the foreign investor should hold, directly or via related parties, less than 40% of the quotas of the FIP, or must be entitled to receive less than 40% of the FIP earnings. Such requirements were cumulative with the 90% Rule. If those requirements were not met, gains and earnings received by FIP foreign investors were subject to WHT at a 15% rate.
  • New requirements – Law 14,711: the 40% Test was revoked. The FIP foreign investor can hold any percentage of the FIP quotas or be entitled to receive any percentage of the FIP earnings to benefit from the regime.

Investment entity

  • Original legal requirements – Law 11,312: there was no requirement establishing that the FIP should qualify as an investment entity, for the FIP investors benefit from the special regime.
  • New requirements – Law 14,711: the special regime only applies to FIPs that qualify as an investment entity, based on the rules defined by the National Monetary Council.

Finally, Law 14,754/2023 modified the tax regime applicable to funds in general, and introduced the come-quotas taxation for closed funds. There are, however, certain exceptions. FIPs that qualify as investment entities and comply with the portfolio composition requirements established by the CVM are not subject to such regime.

FIP-IEs

Law No 11,478/2007 provides that any income (including capital gains) received by Brazilian individuals from FIP-IEs benefits from 0% WHT, provided that the general legal requirements for 0% benefits are met (ie, the requirements applicable to FIP-IEs – see 2.1.1 Fund Structures).

Legal entity quotaholders of a FIP-IE are subject to WHT at a rate of 15% on the income earned upon the redemption and amortisation of quotas, and in the case of liquidation of the fund or the sale of the quotas. For foreign investors, the same specific tax treatment afforded to FIPs applies to FIP-IEs. The original tax treatment applicable to foreign investors in FIP-IEs was also changed by Law 14,711.

FIDCs

Gains on distributions by a FIDC are subject to WHT. The general WHT applicable is regressive, depending on whether the fund is qualified as a long-term investment (if the FIDC portfolio has a term of more than 365 days) or a short-term investment (if the FIDC portfolio has a term of less than 365 days), as follows.

  • Long-term investment:
    1. 22.5% rate – investments due up to 180 days;
    2. 20% rate – investments due from 181 days up to 360 days;
    3. 17.5% rate – investments due from 361 days up to 720 days; and
    4. 15% rate – investments due over 720 days.
  • Short-term investment:
    1. 22.5% rate – investments due up to 180 days; and
    2. 20% rate – investments due over 180 days.
  • Long-term investment: mandatory redemption come-quotas modality of taxation at a rate of 15% in May and November of each year, or at the redemption of the quotas if that occurs first.
  • Short-term investment: mandatory redemption come-quotas modality of taxation at a rate of 20% in May and November of each year, or at the redemption of the quotas if that occurs first.

According to Law 14,754/2023, an FIDC that qualifies as an investment entity and has a portfolio composed of at least 67% of credit rights is not subject to the come-quotas taxation.

There is a difference in taxation concerning Brazilian individuals, legal entities and non-resident investors. Legal entities should consider WHT as an anticipation to corporate income tax (IRPJ). For individuals and non-resident investors, on the other hand, WHT is definitive.

In addition to WHT for the investor, for open-ended funds there is also a tax on financial transactions (IOF, Títulos) if the redemption occurs before the 30th day of investment, on a regressive-rate basis.

WHT applies at the rates indicated above to investments in FIDCs held by foreign investors, although foreign investors in low-tax jurisdictions benefit from a flat 15% rate.

FIIs

Taxation of an FII’s accrued gains only occurs at the level of the investors, and the respective treatment will depend on the location of the investor. There is one exception to this rule, as Law No 8,668/93 establishes that FIIs investing in any real estate enterprise that has a quotaholder holding (individually or jointly with an affiliate) of more than 25% of the quotas of the FII as developer, constructor or partner will be taxed as a legal entity. Under Law No 8,668/93, the FII will be obliged to distribute its results to the quotaholders twice a year.

The gains on distributions by the FII and the gains derived from the sale of the FII’s quotas are generally subject to WHT at a rate of 20%. Gains on distributions made to and gains derived from the sale of the quotas by beneficiaries not located in low-tax jurisdictions that invest in Brazil via the mechanics of Resolution 4,373 are subject to WHT at a 15% rate.

However, if the FII is listed and the quotas are sold within the stock exchange, gains earned by foreign investors not located in low-tax jurisdictions would be subject to WHT at a rate of 0%. The application of the 0% WHT to a sale performed within an over-the-counter market is controversial. In addition, gains on distributions made to individuals are exempt when the quotaholder holds less than 10% of the fund’s quotas or rights to receive income not exceeding 10% of the fund’s total income, and when the FII has at least 100 quotaholders and quotas are traded exclusively on the stock exchange or organised over-the-counter market. Besides, according to Law 14,754, the tax exemption does not apply to a group of individuals that qualify as related parties if they jointly own 30% or more of the FII’s quotas, or if they are entitled to receive earnings that represent more than 30% of the total gains of the FII.

Brazilian retail funds are also organised as condominiums (pools of assets) and can be organised as closed-ended or open-ended funds, as mentioned in 2.1.1 Fund Structures.

Retail funds are regulated mainly by CVM Resolution 175’s Normative Annex I (called FIFs), and are classified as follows.

  • Fixed-income fund: the main risk factor for the portfolio of such fund must be the variation of the interest rate or of the price index, or both. Such funds must have at least 80% of their portfolio in assets directly related, or synthesised via derivatives, to the risk factor that names this class of funds. In this category of funds, there is also the incentivised infrastructure fund aimed at investing in infrastructure assets with an incentivised tax treatment pursuant to Federal Law No 12,431/2011.
  • Equity fund: the main risk factor for the portfolio of such fund must be the variation of the prices of shares admitted for trading in the organised market. At least 67% of the equity fund’s net worth must be represented by:
    1. shares admitted for trading in the organised market;
    2. warrants or subscription receipts and depositary certificates of shares admitted for trading in the organised market;
    3. equity fund quotas and quotas of share-based index funds; and
    4. Brazilian Depositary Receipts (BDRs), classified as level II and III (BDR-Shares and BDR-ETF Shares).
  • Foreign-exchange fund: the main portfolio risk factor for such fund must be the variation of foreign currency prices or the variation of the exchange rate coupon. Such funds must have at least 80% of their portfolio assets directly related, or synthesised via derivatives, to the risk factor that names this category of funds.
  • Multi-market fund: such fund must have investment policies involving several risk factors, without the commitment to concentrate on any particular factor.

In addition, Normative Annex V of CVM Resolution 175 regulates exchange-traded funds (ETFs), which are retail funds formed as open-ended funds. ETFs’ quotas are required to be admitted for trading in stock exchanges or organised markets. Brazilian-formed ETFs may be backed by variable-income and fixed indexes, and at least 95% of their net equity must be invested in:

  • financial assets composing the index;
  • liquidity positions in future contracts, which shall be traded on a commodities and futures exchange, and settled in clearing and settlement chambers and service providers that assume the position of central counterparty; and
  • quotas of other index funds that aim to reflect the variations and profitability of the investor ETF’s benchmark index.

The process for setting up the common structures used for retail funds in Brazil is similar to the process for alternative investment funds; please see 2.1.2 Common Process for Setting Up Investment Funds.

Retail funds are automatically registered with the CVM as of the filing of the requested set of documents.

The rules regarding the limited liability of retail fund investors are the same as for alternative investment fund investors; please see 2.1.3 Limited Liability.

The disclosure requirements for retail funds are the same as provided for alternative investment funds; please see 2.1.4 Disclosure Requirements.

Please see 1.1 State of the Market and 2.2.1 Types of Investors in Alternative Funds.

Please see 3.1.1 Fund Structures for more information on the legal structures used by retail fund managers in Brazil.

There is no legal requirement regarding the type of investor to which retail funds can be marketed in Brazil.

Please see 3.1.1 Fund Structures for more information on the regulatory regime applicable to retail funds.

Limitations on the Composition of the Portfolio

A retail fund must invest its equity in financial assets that are registered in a registration system, or that are the object of custody or a central deposit, in all cases with institutions duly authorised to perform such activities by the Central Bank of Brazil or by the CVM. This is not applicable to quotas of open-ended investment funds duly registered with the CVM. A retail fund may not invest in quotas of funds that hold an interest in such retail fund.

Foreign Assets

FIFs are subject to the following concentration limits when investing in financial assets abroad.

  • There are no limits for:
    1. funds (or classes of quota pursuant to CVM Resolution 175) classified as “Fixed Income – External Debt”; and
    2. funds (or classes of quota pursuant to CVM Resolution 175) exclusively targeted at professional investors.
  • Up to 40% of net equity for funds exclusively targeted at qualified investors.
  • Up to 20% of net equity for funds targeted at the general public.
  • Investment is prohibited for fixed-income funds classified as “simple” (ie, those with 95% of the net equity invested in federal public debt securities, or fixed-income securities issued by financial institutions/operations backed by federal public debt securities or by securities issued by authorised institutions).

Under CVM Resolution 175, the limits applicable to classes of quotas targeted at qualified investors may be exceeded if certain requirement are met.

Limits per Issuer

The concentration limits per issuer for FIFs are as follows, according to the general rules:

  • up to 20% of the fund’s net equity when the issuer is a financial institution authorised to operate by the Central Bank of Brazil;
  • up to 10% of the fund’s net equity when the issuer is a publicly held company;
  • up to 5% of the fund’s net equity when the issuer is a natural person or a legal entity under private law that is not a publicly held company or financial institution authorised to operate by the Central Bank of Brazil; and
  • no limits when the issuer is the Federal Union or an investment fund, or when the investment policy provides for the acquisition of assets of a single securities issuance.

CVM Resolution 175 also sets forth that there will be no limits per issuer when the issuer is an investment fund and the investment policy provides for the acquisition of fungible assets from a single issue of securities.

Limits by Type of Financial Asset

The concentration limits per type of financial asset for retail funds are as follows, according to the general rules.

  • Up to 20% of the fund’s net equity, for the following assets:
    1. FIFs’ quotas targeted at qualified investors, of which 5% may be directed at FIFs’ quotas targeted exclusively at professional investors;
    2. quotas of FIIs;
    3. quotas of FIDCs, of which 5% may be directed at FIDCs investing in non-standard credit rights;
    4. Certificates of Real Estate Receivables (CRIs); and
    5. securities issued by privately held companies.
  • Up to 15% of the fund’s net equity, for the following assets:
    1. FIP’s quotas; and
    2. quotas of agro-industrial investment funds (FIAGROs).
  • Up to 10% of the fund’s net equity, for the following assets:
    1. collective investment bonds and contracts;
    2. crypto-assets, carbon credits and CBIO;
    3. securities issued through electronic participatory investment platforms, as long as they are subject to bookkeeping carried out by a bookkeeper authorised by the CVM; and
    4. other financial assets not provided for above.

There is no concentration limit per type of financial asset for investment in:

  • federal public securities and repo operations backed by these securities;
  • gold, provided it is negotiated in an organised market;
  • the issuance or co-obligation securities of a financial institution authorised to operate by the Central Bank of Brazil;
  • promissory notes, debentures and shares, provided they have been issued by publicly held companies and subject to a public offering;
  • FIFs targeted at the public in general
  • ETFs, BDR-shares, BDR-corporate debt and BDR-ETF;
  • derivative contracts, unless referenced to the assets listed above; and
  • assets, perfectly fungible from a single issue of securities, provided that this specific application constitutes the investment policy of the class, and the assets have been issued by publicly held companies and are the subject of a public offering.

FIFs targeted at professional investors are exempted from the concentration limits. FIFs targeted at qualified investors may increase the percentage of the concentration limits.

For ETFs that seek to reflect the variations and profitability of fixed-income indexes (ie, fixed-income ETFs), financial assets that are not part of the benchmark index but are of the same nature as those with different issuances will be admitted, limited to 20% of the ETF’s net equity.

Please see 2.3.2 Requirements for Non-local Service Providers.

Please see 2.3.2 Requirements for Non-local Service Providers.

Please see 3.1.2 Common Process for Setting Up Investment Funds.

Please see 2.3.5 Rules Concerning Pre-marketing of Alternative Funds.

Please see 2.3.6 Rules Concerning Marketing of Alternative Funds.

Please see 3.2.3 Restrictions on Investors.

Please see 2.3.8 Marketing Authorisation/Notification Process.

Please see 2.3.9 Post-marketing Ongoing Requirements.

Please see 3.2.3 Restrictions on Investors and 2.3.10 Investor Protection Rules.

Please see 2.3.11 Approach of the Regulator.

As described in 3.1.1 Fund Structures, each retail fund is allowed to invest in certain types of assets.

Like alternative funds, retail funds must also engage a custodian, which shall be an entity duly authorised by the CVM.

Upon becoming quotaholders, all investors must confirm, through the formalisation of an adhesion and risk-acknowledgment term, that they had access to the entire content of the by-laws and the essential information sheet, if applicable, and that they are aware of the risk factors related to the fund.

The administrator and the asset manager are not allowed to borrow or grant loans on behalf of the fund, except in cases authorised by the CVM or specific cases set forth in the regulations. Investment funds may use their assets to provide guarantees for their own operations, as well as lend and borrow financial assets, provided that such loan operations are processed exclusively through services authorised by the Brazilian Central Bank or the CVM.

The fiduciary administrator is required to have a manual regarding its valuation practices for both liquid and illiquid assets available on its website. Also, all investment funds must follow international accounting standards.

ETFs may carry out lending transactions with respect to the securities of the portfolio, in the manner regulated by the CVM and in accordance with the limits and conditions set forth in the ETF’s by-laws.

Resolution CVM 175 sets forth the possibility of the manager/administrator borrowing to cover for negative equity of a class of quotas.

Please see 3.4 Operational Requirements.

As investment funds do not have legal personality and generally are not subject to taxation on income and gains derived from their portfolio transactions, no tax arises at the fund level. Therefore, taxation may occur in relation to the investors specifically and not to the fund itself.

Earnings out of quota redemption/amortisation are generally subject to WHT, which is regressive, depending on whether the fund is qualified as a long-term investment (if the fund portfolio has a term of more than 365 days) or a short-term investment (if the fund portfolio has a term of less than 365 days), as follows.

  • Long-term investment:
    1. 22.5% rate – investments due up to 180 days;
    2. 20% rate – from 181 days up to 360 days;
    3. 17.5% rate – from 361 days up to 720 days; and
    4. 15% rate – investments due over 720 days.
  • Short-term investment:
    1. 22.5% rate – investments due up to 180 days; and
    2. 20% rate – investments due over 180 days.
  • Long-term investment: mandatory redemption come-quotas modality of taxation at a rate of 15% in May and November of each year, or at the redemption of the quotas if that occurs first.
  • Short-term investment: mandatory redemption come-quotas modality of taxation at a rate of 20% in May and November of each year, or at the redemption of the quotas if that occurs first.

Law No 14,754/2023 also introduced the come-quotas taxation to closed-ended funds, as of 1 January 2024. Previously, such regime was only applicable to open-ended funds.

There is a difference in taxation concerning Brazilian individuals, legal entities and non-resident investors. Legal entities should consider WHT as an anticipation of their corporate income tax (IRPJ); on the other hand, for individuals and non-resident investors, WHT is definitive.

Specific tax treatment applies to foreign investors, as described in previous sections.

In addition to income tax for the investor, for open-ended funds there is also a tax on financial transactions (IOF, Títulos) if the redemption occurs before the 30th day of investment, on a regressive rate basis.

ETFs

Brazilian law distinguishes variable-income ETFs from fixed-income ETFs, as follows:

  • a fixed-income ETF is qualified as such for tax purposes if it invests at least 75% of its net worth in financial assets that are covered or referenced by the underlying fixed-income index; and
  • a variable-income ETF is qualified as such for tax purposes if its portfolio comprises stocks also covered by the underlying index.

The distribution from a variable-income ETF is tax-exempt (exemption is not applicable for undistributed gain), and the distribution from a fixed-income ETF is taxed at the following rates:

  • 25% rate – investments due up to 180 days;
  • 20% rate – investments due from 181 days up to 720 days; and
  • 15% rate – investments due over 720 days.

Certain ETFs are not subject to the come-quotas modality of taxation, so accumulation is possible, and taxation is deferred upon disposal as per capital gains tax rules. In this sense, ETFs that qualify as an investment entity, comply with the portfolio composition, classification and reclassification established by the CVM, and have quotas listed on a stock exchange or organised over-the-counter market (an exception is made for fixed-income ETFs) are not subject to the come-quotas taxation.

Gains on the disposal or redemption of quotas of a fixed-income ETF are calculated using the same rates as apply to distributions.

Gains on the disposal of quotas of a variable-income ETF in a Brazilian stock exchange are subject to the net gains regime at a rate of 15%, and gains arising from the redemption of quotas of a variable-income ETF are subject to a rate of 15%, as per capital gains tax rules.

Regulatory

CVM Resolution 175 came into force on 2 October 2023 (except for some specific rules that come into effect later) and significantly changed the regulatory framework applicable to investment funds in Brazil.

Tax

On 28 August 2023, the Brazilian federal government issued Provisional Measure No 1,184/2023, through which it aimed at modifying several aspects of the Brazilian tax framework applicable to investors of funds incorporated in Brazil.

Among other provisions, the main change envisaged by the new rules was the extension to the closed-end funds of the fictional amortisation of quotas in May and November of each calendar-year (come-quotas).

Later on, the federal government presented Bill of Law No 4,173/2023, which encompassed the changes proposed by Provisional Measure No 1,184/2023. Bill of Law 4,173/2023 was converted into Law 14,754/2023 on 12 December 2023. As the changes proposed by Provisional Measure No 1,184/2023 are introduced into the Brazilian legal framework, Provisional Measure No 1,184/2023 will likely lose its effectiveness. 

Some of the changes introduced by Law 14,754/2023 are described below.

  • As of 1 January 2024, earnings derived by investment funds, including closed-end funds, are subject to the come-quotas taxation. 
  • Earnings and gains of certain funds such as FIPs, FIDCs, stock funds (FIA) and ETFs are not subject to such regime if they qualify as an investment entity (on the terms defined by the National Monetary Council) and comply with the following requirements:
    1. FIPs shall comply with the portfolio composition requirements established by the CVM;
    2. FIDCs shall have a portfolio composed of at least 67% of credit rights and shall comply with the portfolio composition requirement within 180 days from the first subscription of quotas;
    3. FIAs shall have a portfolio composed of at least 67% of variable-income financial assets (eg, shares, subscription certificates, share deposit certificates, BDRs, etc), regardless of whether they are qualified as investment entities; and
    4. ETFs shall comply with the portfolio composition, classification and reclassification established by the CVM, and shall have quotas listed on a stock exchange or organised over-the-counter market (an exception is made for fixed-income ETFs).

If the funds do not comply with such requirements, they will be subject to the come-quotas taxation, and WHT will be due at a 15% rate.

Funds of funds

Funds that invest 95% of their net assets in FIPs, ETFs (variable income) and FIDCs (classified as investment entities), FIAs, FIIs, Fiagros, FIP-IE, FIP-PD&I and infrastructure investment funds are not subject to the come-quotas taxation.

Foreign quotaholders of Brazilian investment funds are not subject to the come-quotas taxation if they are not domiciled in a low-tax jurisdiction.

Foreign quotaholders investing under Resolution 4,373 will continue to be subject to the WHT upon distribution of earnings and gains and at the amortisation or redemption of quotas.

Different quota classes

In those cases where the investment fund has different quota classes, with different rights and obligations, and a segregated net equity of the fund for each class, each quota class will be considered a fund for tax purposes.

The transference of quotas among different subclasses of a class is not considered a taxation event for the purposes of the imposition of the WHT, if there is no change in quota ownership and no distribution to quotaholders.

Fund reorganisations

Law 14,754/2023 introduced the tax treatment that should be observed in mergers, spin-offs and transformations of investment funds.

Machado Meyer Advogados

Rua José Gonçalves de Oliveira
116 – 5th floor
01453-050
São Paulo, SP
Brazil

+55 11 3150 7000

+55 11 3150 7071

machadomeyer@machadomeyer.com.br www.machadomeyer.com.br
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Law and Practice in Brazil

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Machado Meyer Advogados has an investment funds practice that is vastly experienced in handling matters relating to all kinds of funds, such as private equity funds (FIPs), asset-backed securities investment funds (FIDCs), infrastructure private equity funds (FIP-IEs) and real estate investment funds (FIIs). The firm handles the structuring and formation of funds, the offering of fund quotas (public offerings) and the setting-up of credit assignment frameworks under FIDC structures, as well as advises on funds governance and intricate regulatory matters. Machado Meyer’s funds practice is enhanced by the expertise of the firm’s partners and associates in other areas, and its impressive clientele includes banks, national and international funds, investment banks, hedge funds, fund managers and private equity funds.