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Introduction In the rapidly globalizing world of business, companies often extend their operations beyond their home country's borders. Brazil, being one of the largest economies in the world, naturally attracts foreign investors and entrepreneurs. However, for a foreign resident wishing to become a partner of a Brazilian company, there are specific legal protocols to be observed. One such protocol is the mandatory appointment of a representative (procurador) within Brazil.  This representative acts on behalf of the foreign resident, ensuring adherence to Brazilian regulations and serving as the point of contact for legal matters. Legal Provision for the Requirement of a Proxy for a Non-Resident Partner Brazilian corporate law has specific rules regarding non-residents who act as partners in Brazilian companies. One of these rules concerns the representation of these partners through a proxy. According to Art. 119 of the Brazilian Corporations Law (Law No. 6,404/76), a shareholder resident or domiciled abroad must appoint a representative in Brazil with specific powers to receive summons in lawsuits against him/her based on the provisions of that law. This legal provision ensures that there is a legal figure within the country capable of representing the interests of the foreign partner, while also ensuring that legal actions can be effectively initiated. Manner of Granting the Proxy Foreign entities or individuals desiring to be part of Brazilian businesses should acquaint themselves with the registration mechanisms set by the National Department of Business Registration and Integration (DREI). The DREI governs the specifics for public registration of commercial businesses within the Brazilian Commercial Registry. DREI's Normative Instruction 81, issued on June 10, 2020, outlines the procedures for granting proxy to a representative in Brazil. Specifically, Art. 15 of this instruction states that documents from abroad, including powers of attorney, must be authenticated by a Brazilian consular authority in the country of origin. If they are not written in Portuguese, they must be accompanied by a translation made by a public translator registered with any Board of Trade. Therefore,  for partners from countries that are signatories to the Hague Convention, they must grant the power of attorney (public or private) and then submit it to the apostille process in their country. When the document arrives in Brazil, it must be translated by a sworn translator before being included in the company's registration process with the commercial board. For partners from non-signatory countries, the power of attorney must be prepared at the Brazilian consulate. Many consulates will issue the power of attorney in Portuguese, eliminating the need for a sworn translation in Brazil. However, if this is not the case, a translation will be required when the document arrives in Brazil. If the partner or representative of the foreign company is passing through Brazil, they can grant the power of attorney directly at a Brazilian notary's office , thus avoiding the apostille, legalisation and sworn translation processes. This power of attorney must be included when the company is incorporated in Brazil. In other words, a company that has non-resident partners cannot even be opened without the constitution of a representative. Duration of the Proxy When addressing the duration of the proxy, there is flexibility according to current Brazilian commercial registration practices. Both fixed-term and indefinite-term proxies are accepted.  If the duration is not specified, it is presumed to be of an indefinite term. Given the significant responsibilities entrusted to the representative, we suggest opting for a fixed-term proxy. This approach ensures periodic reviews and potential updates to the proxy, thus offering an added layer of security and control for the foreign stakeholder. Powers Conferred to the Proxy In the context of powers bestowed upon the representative, the Law 6.404/76 mandates that the proxy should at least have the power to receive legal notices in actions against the non-resident shareholder. However, practical necessities demand a broader scope of authority. The foreign company, when becoming a partner in a Brazilian entity, must register itself in the National Register of Legal Entities (CNPJ). This requirement is laid down in the Normative Instruction 2119/2022 of the Brazilian Federal Revenue Service. The same instruction specifies in its Article 6, §1 that "In the case of an entity domiciled abroad, the representative in the CNPJ must be its attorney or legally constituted representative domiciled in Brazil, with powers to manage the assets and rights of the entity in the country and represent it before the Brazilian Federal Revenue Service." Hence, the proxy should minimally encompass the following powers: 1. Receiving Legal Notices:  The authority to receive legal citations in actions against the non-resident shareholder, as per Law 6.404/76. 2. Administrative Powers:  The ability to manage assets and rights of the foreign entity in Brazil. 3. Representation before the Brazilian Federal Revenue Service:  The mandate to represent the foreign entity in tax matters before the Brazilian Federal Revenue Service. By adhering to the specific requirements for proxy documentation, foreign entities can ensure compliance with Brazilian regulations and protect their business interests effectively. CPF and CNPJ Registration for Foreign Partners In Brazil, foreign partners, whether individuals or legal entities, must meet certain fiscal requirements to establish a company. For foreign legal entities, obtaining a National Register of Legal Entities is a must. This process is done online, requiring a copy of the company's bylaws and personal documents of the foreign company's administrator. Firstly, it's essential to register on the CNDR (Non-Resident Declaratory Register). Once approved by the Central Bank, the information is sent to Brazil's Federal Revenue Service, which will assign a tax number and return it to the Central Bank the next day. Registering on SISBACEN is crucial to request the tax number on the investor registration, with guidelines available on the Central Bank's website. With the tax number in hand, you can then proceed with registering the company with the Commercial Registry, ensuring the foreign partner's CNPJ is included in the company's bylaws. For foreign individual partners, a CPF (Individual Taxpayer Registry) is needed. This involves completing a form available on the Federal Revenue Service's website, which, along with personal document copies, should be submitted to the Brazilian consulate in the individual's resident country. The consulate will then process the request, providing the registry. With the tax number acquired, you can request viability at the Commercial Registry, ensuring the foreign partner's CPF is included in the company's bylaws. For Brazilians living abroad, it is not necessary to go to the Consular Office. The CPF enrolment service is preferably provided by e-mail by the Federal Revenue Service ( cpf.residente.exterior@rfb.gov.br ). Non-resident Administrators in Brazil The Law 14.195/21, known as the Business Environment Law, brought significant changes by allowing non-resident foreigners to be appointed as administrators of companies in Brazil. This initiative aims to simplify and reduce bureaucracy in the business environment, thereby improving Brazil's position in the World Bank's "Doing Business" ranking. Before this legislation, only foreigners living in Brazil could hold administrative or directorial positions in limited or anonymous societies, requiring a specific visa. The only exception was being part of boards of directors, provided the foreigner had a representative in Brazil. Law 14.195/21 modified the 2nd paragraph of article 146 of the Corporations Law (Law 6.404/76), enabling any administrator, including directors, to be a non-resident, as long as they have a representative in Brazil with powers to receive summons in corporate actions. This proxy must last for at least three years after the end of their tenure. There were uncertainties regarding whether this change also applied to limited societies. However, DREI clarified that there's no prohibition against non-resident administrators in limited societies , based on Law 13.455/17 and Regulatory Instruction 81/2020 from DREI. Therefore, for both corporations and limited societies, a proxy to a representative in Brazil must be provided when a non-resident foreigner is appointed as an administrator. Conclusion The legal provisions outlined in this article underscore the comprehensive nature of the regulations governing the involvement of non-resident partners in Brazilian businesses. These rules detail the requirements for proxy representation, fiscal registration, and the appointment of non-resident administrators. By understanding and adhering to these guidelines, foreign entities and individuals can ensure that their participation in Brazilian companies is in compliance with the established legal framework. POWER OF ATTORNEY EXAMPLES: Click on the files below to download our power of attorney examples for the representation of a foreign partner in a Brazilian company.

The Pros of Establishing a Subsidiary vs. Engaging a Local Intermediary ABSTRACT : This article provides a detailed overview of entry strategies into the Brazilian market for international companies. Methods, such as establishing a subsidiary or collaborating with local intermediaries, are analyzed through the lens of economic, logistical, and regulatory variables. Aspects like import legislation and profit repatriation are detailed, offering an objective view for investors about the dynamic and complex Brazilian market. KEY-WORDS: Brazilian Market; Subsidiary; Intermediary Contracts; International Sales; International Trade; Product Importation; Brazilian Legislation; Transfer Pricing; Representation Agreements; Distribution Contract; Brokerage Contract; Exporting to Brazil; Brazilian Import Taxes; Brazilian Import Documentation; Profit Remittance; Interest on Equity (IOE); Profit Repatriation; Bilateral Agreements; Operational Compliance; NCM; RADAR; SISCOMEX; BACEN; Central Bank of Brazil.    1. Introduction Delving into the world of international business involves treading through intricate paths, with every decision echoing its repercussions in terms of costs, legal implications, and market strategies. Within this global panorama, Brazil stands out as a beacon of vast opportunities, beckoning investors to explore its rich economic terrain. However, before diving deep, one pertinent question hovers in the minds of many a foreign enterprise: Is it more strategic to operate directly from the home base, selling as a foreign vendor, or to establish a more rooted presence by opening a local subsidiary in Brazil? While we fully acknowledge that the specifics of each case play a pivotal role and that client peculiarities can greatly influence the decision, this analysis aims to shed light on certain determinants. In this article, we'll explore the different variables which might sway an investor's decision between direct operations from their headquarters or setting up shop locally in Brazil. Whether you are a seasoned player or a newcomer in the realm of international trade, understanding these nuances becomes essential to craft a well-informed strategy tailored to the unique Brazilian market.   2. Deciphering the Forms of Sales Intermediation in Brazil: Distribution, Commercial Representation, and Brokerage In international business transactions, understanding the avenues of sales intermediation becomes paramount. Brazil, with its vibrant market dynamics, offers a set of intermediary models for foreign vendors. Here, we'll elucidate the primary characteristics and differences among the Distribution, Commercial Representation, and Brokerage contracts .             2.1 Distribution Contract The distinctive feature of the distribution contract is that the intermediary takes upon itself the role of importing the merchandise, thereby undertaking the associated risks and then resells it in the national market. This model might be ideal for businesses that prefer a more hands-off approach, relying on a seasoned distributor who understands the local market logistics, consumer behavior, and regulatory environment. It should be considered, however, that as the distributor imports and then resells, the layers in the supply chain could be increased, potentially leading to a marked-up price for the end consumer .   2.2 Commercial Representation Contract   Here, the foreign seller deals directly with the end customer, who takes on the responsibility of importing the merchandise. The commercial representative simply connects the foreign seller to the domestic buyer . This type of contract is governed by a specific law in Brazil - Law No. 4,886/65 . This grants the representative additional rights and guarantees, possibly incurring supplementary costs for the foreign seller. It's imperative for foreign entities to grasp the intricacies of this law to circumvent unforeseen obligations. This model can be more suitable for businesses that want to maintain a direct relationship with their customers , possibly for high-value transactions or specialty goods where direct relationships can be of added advantage.   2.3 Brokerage Contract While the broker, like the commercial representative, links the foreign vendor to the local buyer, its main feature is its transient nature . Brokerage contracts are typically more flexible, catering to short-term, specific deals rather than long-standing business relationships. And unlike the commercial representative, they aren’t bound by a specific legislation , offering both the vendor and the broker a freer operational framework. This format is ideal for occasional transactions or specific deals where continuity isn't the primary focus. Given the absence of a structured and regular Brazilian contact, both parties must possess a good grasp of the import processes, as the onus of importation lies with the end customer .   Choosing the Best Approach: Exclusivity arrangements can have a profound influence on the choice of intermediation. In a Distribution Contract, distributors often request, and are granted, exclusive rights to sell within a specified territory or market segment in Brazil . This exclusivity is a double-edged sword. On one hand, it can motivate the distributor to invest more resources, ensuring the product's success in the market because they are assured that no other distributor will compete directly with them within their designated area. On the other hand, it binds the foreign seller to that distributor, potentially limiting market reach if the distributor underperforms or market dynamics change. Thus, if exclusivity is a primary concern, businesses need to weigh its advantages against potential limitations. For firms targeting clients who are proficient in import processes and legalities, the commercial representation or brokerage model might be a better fit . The nature of the relationship—whether it's long-term and in-depth or more transactional—will then dictate the choice between these two. In sum, Brazil’s intermediary landscape is replete with options, each offering its distinct advantages and challenges. Success in this market hinges on aligning business needs with the appropriate model , while also factoring in product type, client demographics, desired relationship depth, and, importantly, considerations around exclusivity and flexibility.    3. Importing Products into Brazil For foreign businesses choosing not to set up a local subsidiary in Brazil and relying on intermediation models, understanding the basics of importing products in Brazil becomes crucial . While the nuances of importation vary based on bilateral agreements between Brazil and other countries, certain fundamental principles remain consistent. Documentation : Like most countries, Brazil requires a set of key documents for imports. This typically includes a Commercial Invoice, Bill of Lading or Airway Bill, Packing List, and a Certificate of Origin. The Certificate of Origin , in particular, is critical because it confirms where the product was made and can influence tariff classifications, depending on bilateral trade agreements. Customs Classification : Brazil uses the Mercosur Common Nomenclature (NCM) system , based on the international Harmonized System. This classification will determine the import taxes to be applied. Bilateral Agreements : Brazil has various trade agreements with certain countries that can streamline the import process. These agreements often offer preferential tariff rates, making products from these countries more competitive. However, the exact benefits depend on the specifics of the bilateral agreement, and businesses should verify whether any such advantages apply to their products. Import Duty and Taxes : Importation into Brazil comes with several layers of taxes and duties. The most common are the Import Duty (II), the Industrialized Product Tax (IPI), the Merchandise and Service Circulation Tax (ICMS), and the PIS/COFINS. Rates can vary based on the product and its NCM classification. Import Declaration : Before goods can clear customs, an Import Declaration (DI) must be registered with the Integrated Foreign Trade System (SISCOMEX ). This system centralizes and automates the various federal procedures related to foreign trade operations. Import License : Not all products require an Import License , but for those that do, it’s essential to secure this license before shipping the goods. The list of products needing this license is specified by the Brazilian government and often pertains to sensitive or regulated items.   In short, opting for an intermediation model without a physical presence in Brazil places the responsibility of importation largely on the Brazilian counterpart, be it the end client or the distributor. However, a deep understanding of the import process, duties, taxes, and potential advantages from bilateral agreements can not only aid in ensuring smooth business operations but also in building a trustful and informed relationship with local partners. As with all aspects of international trade, due diligence and staying updated with regulatory changes are crucial.   4.Key Strategies and Fiscal Considerations for Setting Up a Subsidiary in Brazil   Making the decision to open a subsidiary in Brazil is a noteworthy step for international businesses with a sight set on long-term involvement in the market. It is crucial to understand that in Brazil, the direct handling of product importation and clearance is an exclusive right of local companies, particularly those with an import license known as RADAR. International entities are barred from this practice, necessitating them to navigate through an Importer of Record (IOR) or a distributor if operating without a local branch. By establishing a subsidiary in Brazil, international businesses gain the autonomy to manage their imports and distributions, maintaining steadfast control over their marketing strategy and brand image in the country. Additionally, a Brazilian subsidiary enables participation in local business support programs offered by the government. Import tariffs, a significant barrier in the Brazilian market, can be mitigated by applying the most favorable transfer pricing, adhering to current regulations.              4.1 Remittance of Products from Foreign Headquarters to Brazilian Subsidiary: When international companies establish subsidiaries in Brazil, the movement of goods between the foreign headquarters and the Brazilian entity becomes a crucial operational and financial matter, greatly influenced by the principle of Transfer Pricing. Transfer Pricing : This principle in international transactions, especially involving related entities, is crucial for ensuring fair taxation and discouraging profit shifting. The Brazilian approach to Transfer Pricing, distinct from the OECD guidelines, encompasses several methods: ·         Cost Plus Profit Method ·         Resale Price Minus Method ·         Commodity Method ·         Fixed Percentage on Resale Price Method ·         Fixed Percentage on Export Price Method   Choosing the most fitting method demands a detailed understanding of each, along with an assessment of the organization's transaction nature, ensuring that prices in transactions between related entities are consistent with market parameters. Operational Compliance : Compliance with tax, administrative requirements, and adherence to accurate documentation, particularly the NCM classifications, becomes indispensable in this process.   4.2 Repatriating Profits from the Brazilian Subsidiary to the Foreign Headquarters:   Transferring profits from a subsidiary to its foreign headquarters involves adhering to a procedural framework and respecting the regulatory landscape of the international financial transactions. Dividends : While Brazil does not levy taxes on dividends sent to foreign shareholders, it’s pivotal to determine how these dividends are taxed in the recipient country and explore any available agreements to mitigate double taxation. Central Bank Reporting: Mandatory reporting of financial transactions, including profit remittances, must be made to the Brazilian Central Bank (BACEN). This entails lodging all transactions in BACEN’s electronic system to ensure compliance with Brazilian exchange regulations. Interest on Net Equity (Juros sobre o Capital Próprio - JCP ) : This mechanism allows for shareholder remuneration based on the net equity position and provides a tax deduction for the company, with the JCP subject to a withholding tax (currently at a rate of 15%). Establishing and operating a subsidiary in Brazil to distribute products/services requires meticulous adherence to financial, legal, and regulatory norms, notably in the realms of transfer pricing and profit repatriation. Ensuring practices align with both local and international tax laws, coupled with stringent reporting and compliance adherence to BACEN, not only safeguards the business’s legal positioning but also enhances its financial efficacy across international operational spheres.    5. Conclusion The fact is that, in the end, the decision between operating as a foreign supplier or establishing a subsidiary in Brazil is intrinsically linked to the company's strategic orientation, customer demographics, product type and intended market reach . This decision-making requires a solid analytical approach that combines the company's strategy with the unique dynamics of the Brazilian market. The Brazilian market, with its specific challenges and opportunities, requires a systematic, well-informed, and strategically aligned approach on the part of international companies. This ensures that the foreign company's entry into the Brazilian market is not only in compliance with regulatory standards, but also in harmony with its commercial goals.