In Brazil, since 2022, new rules for the publication of financial statements have come into effect. In this article, we consolidate the current understanding of the requirements for the disclosure (publication) of these statements. Limited Companies — Large Company Currently: Optional publication in a journal.
Context: On November 25, 2022, a court decision was published declaring the legality of item 7 of Circular Letter No. 099/2008, which exempts large limited companies from publishing financial statements, in the Official Gazette and in newspapers with a large circulation. The court decision was handed down in the file of Action No. 0030305-97.2008.4.03.6100, filed by the Brazilian Association of Official Press (Abio) before the Federal Government, seeking the declaration of illegality of item 7 of Circular Letter No. 099/2008. The Drei did not review the matter and the guidance given in the past by the National Registration and Commerce Department (DNRC) was considered legal by a court decision. Circular Letter No. 099/2008, art. 7., clarifies that “Large Companies, in order to comply with the provisions of art. 40 of Law No. 8,934/96, may optionally publish their financial statements in official newspapers or other media, for the purpose of approving their filing at the Commercial Boards”. Maintaining guidance on non-publication has a relevant practical effect for large limited companies, which are exempt from the cost of publishing their financial statements, as a result of this decision.
Sources:
Circular Letter No. 099/2008
STJ, SPECIAL APPEAL NO. 1824891 — RJ (2019/0119281-0)
Public Limited Companies — Closed Capital — Companies with annual gross revenues of up to R$ 78 million Currently: Mandatory publication only on SPED
Context: Under the terms of Law 6,404/76, art. 294, a privately-held company with annual gross revenues of up to R$ 78,000,000.00 (seventy-eight million reais) may publish electronically on Public Digital Bookkeeping System Balance Sheet Center — SPED , established by Decree No. 6,022 of January 22, 2007.
Sources:
Law 6,404, Art. 294
ORDINANCE NO. 12071, DATED OCTOBER 07, 2021
Public Limited Companies — Closed Capital — Other types Currently: Compulsory publication in a newspaper with a large circulation in the city in summary form, and with the simultaneous dissemination of the full documents on the website of the same newspaper, in compliance with legal requirements.
Context: Pursuant to Law 6,404/76, art. 289, publications must be published in a newspaper with a large circulation published in the location where the company's headquarters are located (the Company must publish the publications provided for in this Law always in the same newspaper, and any change must be preceded by a notice to the shareholders in the extract of the minutes of the ordinary general meeting), in summary form and with simultaneous disclosure of the full documents on the page of the same newspaper on the internet, which must provide digital certification of the authenticity of the documents maintained on the own page issued by an accredited certification authority under the Brazilian Public Key Infrastructure (ICP-Brazil). In the case of a summary publication, it must contain, at a minimum, compared to the data from the previous fiscal year, information or global values relating to each group and the respective classification of accounts or records, as well as extracts of the relevant information included in the explanatory notes and in the opinions of the independent auditors and the fiscal council, if any. The Securities and Exchange Commission determined, through the CVM Guidance Opinion 39, guidance on the publication requirements to be observed in the summary financial statements.
Sources:
Law 6,404, Art. 289
CVM GUIDANCE OPINION NO. 39, DATED DECEMBER 20, 2021
Public Limited Companies — Open Capital — Companies with annual gross revenues of less than R$ 500 million Currently: Publication is available through the Empresas.NET Systems or Fundos.Net.
Context: On September 1, 2022, the Securities and Exchange Commission (CVM) issued CVM Resolution No. 166 (Resolution 166), which regulates Article 294-A, IV of the S.A. Law (Law No. 6,404, 1976), introduced by the so-called Legal Framework for Startups (Supplementary Law No. 182, 2021), to enable smaller public companies to publish their legal publications through the Empresas.net System, provided by the CVM. Smaller publicly traded companies are legally considered to be those that earned annual gross revenue of less than R$ 500 million in the last fiscal year, and which may publish the publications ordered by the S.A. Law, or provided for in the regulations of the CVM, through Sistemas Empresas.net, to which all Brazilian publicly traded companies already have access.
Sources:
Law 6,404, Art. 294-A
CVM RESOLUTION NO. 166, DATED SEPTEMBER 1, 2022
Public Limited Companies — Open Capital — Other types Currently: Compulsory publication in a newspaper with a large circulation in the city in summary form, and with the simultaneous dissemination of the full documents on the website of the same newspaper, in compliance with legal requirements.
Context: Pursuant to Law 6,404/76, art. 289, publications must be published in a newspaper with a large circulation published in the location where the company's headquarters are located (the Company must publish the publications provided for in this Law always in the same newspaper, and any change must be preceded by a notice to the shareholders in the extract of the minutes of the ordinary general meeting), in summary form and with simultaneous disclosure of the full documents on the page of the same newspaper on the internet, which must provide digital certification of the authenticity of the documents maintained on the own page issued by an accredited certification authority under the Brazilian Public Key Infrastructure (ICP-Brazil).
Sources:
Law 6,404, Art. 289
*** material prepared by the partners Renato Mateus Gonçalves and Luis Carlos de Souza
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