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Commercial board to allow payment of social capital with crypto assets

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By Clara Couto and Fernanda Marques

On the 1st of December 2020, the Ministry of Economy released Circular Letter SEI nº 4081/2020/ME, in response to the consultation carried out by the Commercial Board of the State of Sao Paolo (JUCESP), declaring the possibility of using crypto assets as a way of payment of corporate transactions and payment of capital.

The objective of the Circular is to consolidate the understanding and operationalization of the Commercial Boards, at national level, on the subject, so that the measure is not incorporated only by JUCESP. In addition, both the Central Bank and the Brazilian Securities and Exchange Commission (CVM) have already issued favorable opinions on the matter and the Internal Revenue Service already considers cryptocurrencies as financial assets, including requiring them on annual tax declaration since they are assets and rights.

The measure doesn’t innovate legislatively, since the Civil Code, in its article 997, item III, expressly states that the capital of a company can comprise any kind of assets, susceptible to pecuniary valuation.

Therefore, it is important to understand that the Civil Code does not limit the assets that can be paid up for companies’ share capital, however, these assets must be subject to assessment and compatible with the activities carried out by the company.

The Circular determined that there are no special formalities that must be observed by the Commercial Boards when registering corporate acts that involve the use of cryptocurrencies, and the same rules applicable to the payment of capital with movable assets must be respected.

The payment of capital, through crypto assets, is already a common practice in several other countries, such as the United States, and its implementation represents a modernization of the commercial registration system in Brazil, reaffirming contractual and business autonomy in the country.