The Ministry of Economy (ME), through the Special Secretariat for Debureaucratization, Management, and Digital Government, published last December 1st the Circular Letter SEI No. 4801/2020, which determines the possibility of using cryptocurrencies – such as Bitcoin – to pay for the capital stock of companies and as a means of payment in any corporate transactions.
The payment of the capital stock of a company must occur through the presentation of assets by the partners, whether through cash, vehicles, real estate, shares, or other goods. From now on, the payment can also be made with crypto-assets, with a single peculiarity: because it is a highly volatile asset, the value that must be recorded in the bookkeeping will be the price at the time of closing the transaction.
The Circular Letter SEI No. 4801/2020 is the result of a consultation made by the Board of Trade of the State of São Paulo (JUCESP), which questioned some points:
(i) what is the legal nature of cryptocurrencies?
(ii) does the current legal system prohibit the payment of capital with cryptocurrencies?
(iii) what formalities should be adopted by the Boards of Trade for the operationalization of the registration of corporate acts involving the use of cryptocurrencies?
In view of the questions raised, precedents and concepts formulated by the Brazilian Central Bank (Bacen), the Securities and Exchange Commission (CVM), and the Federal Revenue Service (RFB) were analyzed.
Regarding the legal nature of cryptocurrencies, it was defined that cryptocurrencies have a monetary nature, and can be used in investments, purchases of products and services, among other financial transactions, including in the corporate sphere, as a form of payment or payment for corporate transactions.
The Civil Code and the Corporation Law do not limit which assets can be conferred to the capital stock of companies, it is certain that such assets must be susceptible to evaluation and compatible with the company’s activities. Furthermore, the RFB has classified crypto-assets as a “digital representation of value” and thus it can be interpreted that these assets are liable to pecuniary valuation and consequently can be paid into the capital stock of business companies.
The Official Letter also confirms that there are no special formalities that must be observed by the Boards of Trade when registering corporate operations involving cryptocurrencies. Therefore, the same rules applied to the payment of capital with movable assets must be respected, observing the respective corporate types.
The upward trend in cryptocurrencies can be explained by the lack of relationship between such assets and the financial systems of countries, which have been largely affected by the coronavirus pandemic. Thus, many investors are turning to virtual currencies as an investment option that will provide a buffer of wealth protection in the post-pandemic scenario.
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