We would like to remind you that companies must hold Annual General Meetings (limited liability companies with more than 10 partners), Annual Quotaholders’ Meetings (limited liability companies with less than 10 partners) or Annual Shareholders’ Meetings (corporations) to examine the management accounts within the first four (4) months following the end of the fiscal year.
For companies with fiscal year ending on December 31, such term expires on April 30, 2022.
The recent amendments to Law No. 6.404/76 (“Corporation Law”) introduced by Law No. 13.818/2019, which came into effect on January 01, 2022, stated that corporations are exempt from the obligation of publishing their documents, including the Balance Sheets, in the Official Gazette. The publication is necessary in a wide circulation newspaper (summary format) and such newspapers’ website (in its entirety).
In addition, the Corporation Law was changed by Supplementary Law No. 182/2021 (New Legal Framework for Startups), which allows to closely held corporations with annual gross revenue up to BRL 78 million to publish their acts solely electronically.
With respect to limited liability companies, the provisions regarding publications stated in the Brazilian Civil Code remain unchanged. Consequently, such companies must still publish the entirety of the acts in the Official Gazette and in a wide circulation newspaper.
Such matter could give rise to controversy as regards large-sized limited liability companies, which, according to Law No. 11,638/07, are companies or a group of companies under common control whose total assets exceeded BRL 240 million or whose annual gross revenue exceeded BRL 300 million in the previous fiscal year. For such companies, the requirements of the Corporation Law regarding bookkeeping and preparation of the financial statements are applicable. Therefore, except for large-sized limited liability companies that benefit from court decisions authorizing the contrary, such as those located in the State of São Paulo and associated to the “Centro das Indústrias do Estado de São Paulo” (In English, “Center of Industries of the state of Sao Paulo”, or CIESP), they are required, pursuant to the Corporation Law, to publish their financial statements prior to their annual general meetings or annual partners’ meetings.
In this context, although Law No. 11,638/07 expressly establishes that large-sized limited liability companies are subject to the rules contained in the Corporation Law regarding financial statements, regardless of their corporate type, there has still not been any formal statement in this regard from the National Department of Business Registration and Integration (DREI), through a Normative Instruction and/or updates to the Manual of Limited Liability Companies, which (except if the large-sized limited liability company benefits from a court decision waiving the requirement of publication), may give rise to divergent interpretations on this matter.
Finally, it is worth noting that the approval of the balance sheet will exempt the officers from any liability for the accounts of the related fiscal year.
Demarest’s Corporate and M&A team is available to provide any further information or clarifications on this matter or any other issue.