February 2024 – Rossetti Advogados
On January 10, President Lula da Silva sanctioned Law No. 14.801/24, which creates the infrastructure debentures, to be issued by public utility concessionaires. Said rule also amends the regulations of investment funds in the industry.
The text of the law was approved by the Chamber of Deputies last December, with the amendments proposed by the Senate. Debentures are negotiable instruments that represent loans issued by companies, which may be traded in the market and may be acquired by individuals or legal entities. The buyer is remunerated with interest and monetary adjustment until full settlement of the instrument.
Introduction of the infrastructure debentures does not exclude, but differentiates from incentivized debentures, which grant benefits to those who acquire these instruments. In the case of infrastructure debentures, the incentive is granted to the issuer, which shall enjoy a reduction in the Corporate Income Tax (IRPJ) base and in the Social Contribution on Net Income (CSLL) equivalent to 30% of the interest paid to the holders of the instruments, after consideration of the financial expenses.
The same rule of the Income Tax regressive table shall apply to the investor, with tax rates of 22.5% for investments with a term of up to 180 days, 20% for terms from 181 to 360 days, 17.5% from 361 to 720 days, and 15% as from 721 days. With respect to foreign investors, the tax rate is 15%, and it is increased to 25% if the investor is resident in a favored taxation country.
As established by the law, the funds raised through the issue of these debentures shall be used in infrastructure investment programs or in research-, development-, and innovation-intensive economic activities.
These debentures shall be issued until December 31, 2030, according to the new rules established by the project in the laws governing investment funds in the industry.
The areas in which the funds may be used shall be defined in regulations, allowing these instruments to contain exchange rate change clauses and be issued even by companies that are direct or indirect controlling shareholders of the concessionaires.
The regulations shall also define the classification criteria of the projects in industries deemed a priority, and they may establish other criteria to encourage initiatives that present material environmental or social benefits, such as priority processing and monitoring of the projects by means of a self-declaration of the project owner.
However, some restrictions are imposed that prohibit the purchase of these debentures by persons related to the issuer, such as controlling shareholders, shareholders holding more than 10% of the voting shares, managers, spouses, and relatives up to the 2nd degree. Affiliates, controlled companies, or controlling shareholders are also prevented from acquiring these debentures, as well as funds with shareholders more than 10% of the shares of which are controlled by companies or individuals prohibited from purchasing them.
Failure to comply with these prohibitions shall result in a fine of 20% of the debenture amount.
In the cases of intent, fraud, collusion, or sham, when the buyer is resident abroad, the issuing company shall be jointly liable for the fine if the prohibitions are breached.
The government seeks that this measure produces a direct impact on the country’s integration and development, driving investments in infrastructure, such as the construction of railroads, duplication of roads, improvement in the network of rural roads, and integration of transportation modes.
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This article is based on publicly available information and given for informational purposes only. It is not intended as legal advice foreign subsidiary as a comprehensive analysis of the matters referred to herein.