The year 2013 was over and the discussion about the possibility of issuing debentures by limited liability companies gained a new chapter with the proposal of PL 6322/13 by Deputy Carlos Bezerra, PMDB / MT. After the analysis of proposals and substitutes, the project was approved by the Constitution and Justice and Citizenship Committee in April 2018, including a proposal for the issuance of these securities by limited companies to be included in the text of Law 10.406 / 02 (Civil Code), with the inclusion of art. 1.084-A, where it remains.
Today, almost six years after the project was introduced, the creation - or at least the non-prohibition of use - of more efficient capitalization mechanisms for limited companies, the most representative corporate type in the domestic market, is still being discussed. It is no exaggeration to assume that, especially in relation to debentures, the claim for the possibility of issuance by limited liability companies coincides with the very improvement of the Brazilian economy, which must provide for instruments for our companies to operate in international market standards.
Driven by the yearning of the market and in line with the Federal Government's intention of reducing bureaucracy and ensuring greater freedom in the pursuit of economic activities, the discussion seemed, finally, to move towards an outcome with the edition of Conversion Bill No. 17/19. (PLV 17/19), which, similarly to PL 6322/2013, governed the inclusion of an additional paragraph to art. 1,055 of the Civil Code, expressly providing for the possibility of private issuance of debentures by limited companies.
However, the text approved by the Federal Senate on August 21 (PLV No. 21/19) and sent for presidential sanction is substantially different from PLV 17/19, not mentioning at all the issue of debentures of limited companies, a topic whose importance The fact that, for the companies under analysis, the general mode of capitalization is the capital increase, which ends up in actual disbursement by their partners or even in the acceptance of a new business partner, which is not always It is the best alternative. The second option is usually the loan, usually contracted with financial institutions.
It happens that debentures have several advantages when compared, for example, to the loan, including tax and contractual issues, since, in the case of debentures, there is more room for the company to negotiate with debenture holders, the obligations assumed by them in the issue. It also allows betting on a cheaper financing alternative, especially taking into account the rates practiced in the financial market.
The debentures, we recall, represent an obligation to pay the issuing company embodied in a set of autonomous and equal debt securities, with a security nature, which together constitute a global and uniform debt of the issuer, not being confused with the mutual A typical contract whereby one party transfers ownership of a refundable fungible to the other.
This differentiation, although simple, allows a lower incidence of taxes on issuance when compared to the loan, since the most common loan operations levies the IOF tax rate of 0.0041% per day, limited to 1.5% ( RIOF, article 7, paragraph 1), with an additional 0.38% (RIOF, article 7, paragraph 15), while debentures are subject to the incidence of zero-rate tax (RIOF, article 32, paragraph 2nd, VI).
With the eventual sanction of the text along the lines sent to the Presidency, the discussion about the applicability of the issuance of debentures to limited companies returns to the table. Meanwhile, the limited companies, which represent the majority of legal entities incorporated in Brazil, are still prevented (although there is no express legal prohibition) from using this capitalization mechanism due to the current legal uncertainty for its adoption.
Originally published by Jornal O Estado de S. Paulo.
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