The new foreign exchange law 14.286/21[1](“New Exchange Rate Framework”), which came into force on the last December 30, 2022, had major impacts on Intellectual Property contracts, simplifying and modernizing the previous system, which had been in force for over 80 years in the country, since 1935. The New Exchange Rate Framework introduced new rules for foreign capital in the country and for Brazilian capital destined abroad, updating the rules for international remittance of royalties and technical and scientific assistance.

 

In this sense, it is important to note that, prior to the enactment of Law 14,286/21, it was mandatory to register contracts with the Central Bank (“BACEN”), for the purpose of authorizing foreign exchange remittances abroad (related to the right to use and exploit of the technology involved) and considering the tax deductibility of the payment. In line with the intended modernization, art. 24[two]of the new exchange rate framework eliminated the need to register contracts involving intellectual property with BACEN, for the purpose of authorizing remittances as royalties and payments abroad.

 

Despite the unnecessary registration with the BACEN, it is important to highlight that the obligation to register contracts with the National Institute of Industrial Property (“INPI”) was maintained in the new exchange rate framework, for tax deductibility purposes. This is because the registration of contracts with the INPI consists of a tool to legitimize payments abroad by way of royalties, which come from the exploitation of industrial property rights, and with regard to payments for know-how, technical assistance and science and franchise.

 

However, it should be noted that the system for registering contracts at the INPI has undergone important changes, which simplify the procedure under discussion.

 

Finally, another relevant innovation brought about by Law 14,286/21 mentions the monetary limit for remittances between a branch or subsidiary of a company established in Brazil and its headquarters based abroad. In the old understanding of the INPI, there was a maximum tax deductibility limit – of up to five percent (5%) of the gross revenue of the product manufactured or sold – established by Ordinance 436/58, of the Ministry of Finance. Article 28[3]of law 14,286/21 revoked the limitation of royalty payments between a branch or subsidiary of a company established in Brazil and its parent company based abroad, demonstrating the intention to simplify the Brazilian exchange rate system.

 

Undoubtedly, these are changes that facilitate transactions involving the exploitation of industrial property rights, payments for know-how, technical and scientific assistance, and franchising.

 

Our Intellectual Property and Tax teams are available to assist you in this matter.

 

[1] http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/lei/l14286.htm

[two]Article 24. “Art. 50 of Law nº 8.383, of December 30, 1991, becomes effective with the following changes: “Art. 50. The expenses referred to in line “b” of the sole paragraph of art. 52 and item 2 of item “e” of the sole paragraph of art. 71 of Law No. 4,506, of November 30, 1964, arising from contracts that, after December 31, 1991, are signed and registered at the National Institute of Industrial Property (INPI), become deductible for purposes of calculating profit real, subject to the limits and conditions established by law.”

[3]Art. 28. “The following provisions of Law No. 4,131, of September 3, 1962, are hereby revoked: (...) d) art. 14;”