BCB Resolution No. 348 — Amends Resolution BCB No. 278, Resolution BCB No. 281, and Circular No. 3.689 regarding foreign capital, external credit, and foreign direct investment

BCB RESOLUTION NO. 348, OF OCTOBER 17, 2023

Amends Resolution BCB No. 278, of December 31, 2022, which regulates Law No. 14.286, of December 29, 2021, regarding foreign capital in the Country, external credit operations and foreign direct investment, as well as the provision of information to the Central Bank of Brazil; amends Resolution BCB No. 281, of December 31, 2022, which regulates transitional provisions to be observed in conjunction with Resolution BCB No. 278, of 2022, which regulates Law No. 14.286, of 2021, regarding foreign capital in the Country, external credit operations and foreign direct investment, as well as the provision of information to the Central Bank of Brazil; and amends Circular No. 3.689, of December 16, 2013, which regulates, within the scope of the Central Bank of Brazil, provisions on foreign capital in the Country and Brazilian capital abroad.

The Collegiate Board of the Central Bank of Brazil, in a session held on October 17, 2023, based on arts. 1, 5, items VIII and IX and § 4, 8, 9, 10, 11 and 18 of Law No. 14.286, of December 29, 2021, and in view of Resolution No. 4.373, of September 29, 2014,

RESOLVES:

Art. 1 Resolution BCB No. 278, of December 31, 2022, shall enter into force with the following alterations:

“Art. 2 ............................................................................................................

I - ......................................................................................................................

g) external financial leasing, understood as the operation in which a non-resident legal owner of an asset (lessor) transmits substantially all the risks and advantages of ownership of the asset to a resident (lessee) in exchange for payment of installments;

.........................................................................................................................

IV - assignment of credit: transfer of credit rights, external or internal, between resident and non-resident creditors, or between non-resident creditors;

V - foreign direct investment: direct participation of a non-resident in the share capital of a company in the Country, or another economic right of a non-resident in the Country derived from an act or contract whenever the return of this investment depends on the results of the business;

VI - Foreign Capital Information Reporting System for External Credit (SCE-Crédito): computerized system made available by the Central Bank of Brazil for reporting information on external credit operations;

VII - Foreign Capital Information Reporting System for Foreign Direct Investment (SCE-IED): computerized system made available by the Central Bank of Brazil for reporting information on foreign direct investment operations;

VIII - SCE-Crédito code: identifier of the external credit operation generated automatically by SCE-Crédito after information on the characterization of the operation;

IX - SCE-IED code: unique identifier of the non-resident recipient-investor pair generated automatically by SCE-IED after identification of the non-resident recipient and investor;

X - Non-Resident Declaratory Register (CDNR): system made available by the Central Bank of Brazil in which non-resident registration information is declared, generating a CDNR number, which is a prerequisite for reporting information on external credit operations;

XI - recipient: any entity constituted or organized in the Country in accordance with applicable Brazilian legislation, with or without profit-making purposes, with or without legal personality, including any corporation, company, partnership, individual entrepreneur, consortium, and partnership in a participation account;

XII - international share or stock swap: capitalization of a Brazilian company’s share capital carried out by a non-resident through the delivery or swap of equity participation held in a foreign company, headquartered abroad, or capitalization of a foreign company, headquartered abroad, carried out through delivery or swap, by a resident, of equity participation held in a Brazilian company;

XIII - swap of quotas or shares in the Country: delivery of quotas or shares capitalized in the share capital of a company in the Country, held by a non-resident investor, for capitalization by him in another recipient in the Country;

XIV - swap of quotas or shares in the Country: exchange of equity participations in Brazilian companies, at least one of which is a recipient of foreign direct investment, carried out between resident and non-resident investors, or between non-resident investors;

XV - corporate reorganization: merger, incorporation, or spin-off of companies in the Country, in which at least one of them is a recipient of foreign direct investment;

XVI - reinvestment: capitalization of profits, dividends, interest on equity, or profit reserves in the recipient in which they were produced;

XVII - conversion: operation by which rights and credits capable of generating financial transfers abroad, as well as assets belonging to non-residents, are converted into foreign direct investment or external credit in accordance with this Resolution; and

XVIII - assignment of quotas or shares: transfer of equity participation in a Brazilian company carried out between a resident investor and a non-resident investor, or between non-resident investors.” (NR)

“Art. 17 ...........................................................................................................

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II - the recipient, in the case of foreign direct investment operations.” (NR)

“Art. 21. In financial transfers of external credit or foreign direct investment operations subject to information reporting, according to the exigibility criteria of this regulation, the following must appear in the information on the foreign exchange operation or the movement of funds of third-party interest in a non-resident’s real account:

I - the SCE-Crédito code in all financial transfers; or

II - the SCE-IED code in financial transfers with a value equal to or greater than US$100,000.00 (one hundred thousand United States dollars) or its equivalent in other currencies.” (NR)

“Art. 25-A. Conversions between external credit operations, including interest and charges in principal, must be reported in SCE-Crédito within 30 (thirty) days after their occurrence.” (NR)

“Art. 27. ..........................................................................................................

I - characterization of the operation;

II - payment conditions;

................................................................................................................” (NR)

“Art. 28. The characterization of the operation and the payment conditions must be declared in SCE-Crédito:

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II - within 30 (thirty) days after disbursement, delivery of goods, or provision of services, by the creditor, abroad or in the Country, when the operation is contracted without the inflow of funds into the Country.” (NR)

“Art. 29. .........................................................................................................

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IV - the disbursement or delivery of goods, by the creditor, abroad or in the Country, in operations without inflow of funds into the Country.” (NR)

“Art. 30. Information regarding financial transfers, including movement of funds of third-party interest in a non-resident’s real account, of external credit operations subject to information reporting is captured automatically by SCE-Crédito, based on information available in the Foreign Exchange System.

Sole Paragraph. The amounts received are captured automatically in the currencies present in the foreign exchange operations and movements of funds of third-party interest in a non-resident’s real account, regardless of the currency contracted in the credit operation, which must be reported as the denomination currency.” (NR)

“Art. 31. In external credit operations subject to information reporting, the following movements must be declared by the responsible party in SCE-Crédito, within 30 (thirty) days after their occurrence:

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IV - payments and receipts in a non-resident’s real account that are not movements of third-party interest;

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VIII - assignment of credit.

Sole Paragraph. The debtor of the external credit operation must provide information regarding onerous or non-onerous credit assignments carried out by the creditor of the credit operation.” (NR)

“Section III

On Foreign Direct Investment Operations

Art. 32. The reporting of information on foreign direct investment operations must be carried out by the responsible party when:

I - a financial transfer occurs, including movement of funds of third-party interest in a non-resident’s real account, related to a non-resident investor with a value equal to or greater than US$100,000.00 (one hundred thousand United States dollars) or its equivalent in other currencies;

...............................................................................................................” (NR)

“Art. 33. The reporting of information on foreign direct investment operations must include:

................................................................................................................” (NR)

“Art. 34. ..........................................................................................................

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III - the SCE-IED code.

§ 1 The SCE-IED code is generated automatically by SCE-IED after identification of the recipient and the non-resident investor, which must be reported prior to the first financial transfer of the investment, in the manner provided for in art. 32, item I, to the first movement, in the manner provided for in art. 32, item II, or to the first quarterly or annual periodic declaration.

§ 2 The recipient of foreign direct investment subject solely to the reporting of the five-year declaration is exempt from detailing the foreign direct investment in SCE-IED.

................................................................................................................” (NR)

“Art. 35. Financial transfers, including movement of funds of third-party interest in a non-resident’s real account, resulting from foreign direct investment are captured automatically by SCE-IED, based on information available in the Foreign Exchange System, in the cases of:

................................................................................................................” (NR)

“Art. 41. ..........................................................................................................

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§ 1 The deadline for filing the quarterly declaration with a base date of September 30, 2023 is from November 1 to December 31, 2023.

§ 2 The deadline for filing the quarterly declaration with a base date of September 30, 2024 is from November 11 to December 31, 2024.” (NR)

“Art. 42. The information reporting provided for in art. 36 of this Resolution shall be due from October 1, 2024.” (NR)

“Art. 46. ..........................................................................................................

I - on February 10, 2025, regarding art. 39; and

................................................................................................................” (NR)

Art. 2 Resolution BCB No. 281, of December 31, 2022, shall enter into force with the following alterations:

“Art. 1-A Values must be reported via declaration in the Foreign Capital Information Reporting System for External Credit (SCE-Crédito) for transfers between external credit operations subject to information reporting and applications by non-resident investors in the financial and capital markets, in accordance with the Regulation Annex I to Resolution No. 4.373, of September 29, 2014, conducted through simultaneous foreign exchange operations.

Sole Paragraph. In the operations governed by the main text, the SCE-Crédito code must not appear in the information on the foreign exchange operation or the movement of funds of third-party interest in a non-resident’s real account.” (NR)

“Art. 2 Recipients of foreign direct investment must report in the Foreign Capital Information Reporting System for Foreign Direct Investment (SCE-IED):

................................................................................................................”
(NR)

“Art. 3 The following are captured automatically by SCE-IED, based on information available in the Foreign Exchange System, including movement of funds of third-party interest in a non-resident’s real account, the values of:

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III - transfer between foreign direct investment operations and foreign investment operations in the financial and capital markets;

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Sole Paragraph. The SCE-IED code must appear in the information on the foreign exchange operation or the movement of funds of third-party interest in a non-resident’s real account, when the value is equal to or greater than USD 100 thousand, in cases of transfer between foreign direct investment operations and foreign investment operations in the financial and capital markets, conducted through simultaneous foreign exchange operations.” (NR)

“Art. 4 The following values must be reported via declaration in SCE-IED:

.........................................................................................................................

II - corporate reorganization, understood as the merger, incorporation or spin-off of companies in the Country, in which at least one of them has participation of foreign capital reported to the Central Bank of Brazil;

III - swap of shares and quotas in the Country, understood as the exchange of equity participations in Brazilian companies, at least one of which is a recipient of foreign direct investment reported to the Central Bank of Brazil, carried out between resident and non-resident investors, or between non-resident investors;

.........................................................................................................................

VIII - conversion into foreign direct investment of rights remittable abroad not reported as external credit;

IX - international swap of shares or other assets.

§ 1 The reporting of information governed by the main text must be carried out whenever the movement is of value equal to or greater than US$100,000.00 (one hundred thousand United States dollars of America) or its equivalent in other currencies, within 30 (thirty) days, counted from the date of occurrence of the events governed by items I to IX of the main text.

................................................................................................................”
(NR)

“Art. 6 The quarterly periodic declarations of foreign direct investment must be filed in SCE-IED through the economic-financial declarations functionality.

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§ 3 A quarterly declaration must be filed by the recipient of foreign direct investment that, on the base date of December 31, 2023, has total assets with a value equal to or greater than R$300,000,000.00 (three hundred million reais).

§ 4 The deadline for the declaration governed by § 3 is from January 1, 2024 to March 31, 2024.

§ 5 A quarterly declaration must be filed by the recipient of foreign direct investment that, on the following base dates, has total assets with a value equal to or greater than R$300,000,000.00 (three hundred million reais), observing the following deadlines:

I - base date of March 31,
2024: declaration deadline from April 1 to June 30, 2024; and

II - base date of June 30, 2024: declaration deadline from July 1 to September 30, 2024.” (NR)

“Art. 7-A The annual periodic declaration of foreign direct investment regarding the base date of December 31 of 2023 must be filed through the Foreign Capital Census system.

§ 1 The deadline for filing the annual declaration governed by the main text is between July 1 and 6 p.m. on August 15, 2024.

§ 2 The following must file the declaration governed by the main text:

I - legal entities headquartered in the Country, with direct participation of non-residents in their share capital, in any amount, and with net equity equal to or greater than the equivalent of US$100 million (one hundred million dollars of the United States of America), on the respective base date; and

II - investment funds with non-resident unitholders and net equity equal to or greater than the equivalent of US$100 million (one hundred million dollars of the United States of America), on the respective base date, through their administrators.” (NR)

“~~~~Art. 8 The following must be observed:

I - until October 31, 2023, the provisions contained in art. 1 and items II and IV of art. 3; and

II - until October 1, 2024, the provisions contained in arts.
2, 4, 5 and 6 and items I, III and V of art. 3.” (NR)

Art. 2 (Revoked, from 1/1/2025, by Joint Resolution No. 13, of 12/3/2024.)

Art. 3 Circular No. 3.689, of December 16, 2013, shall enter into force with the following alterations:

“Art. 108-AA. The following are subject to the realization of simultaneous foreign exchange operations:

I - the conversion of non-residents’ assets in the Country into investment in the financial and capital markets;

II - the transfer of application by a non-resident investor through the mechanism of Depositary Receipts, in accordance with Regulation Annex II to Resolution No. 4.373, of 2014, to the modality of foreign direct investment in the Country, governed by Resolution BCB No. 278, of December 31, 2022;

III - the transfer of application by a non-resident investor through the mechanism of Depositary Receipts, in accordance with Regulation Annex II, for application by a non-resident investor in the financial and capital markets in the Country, in accordance with Annex I, both of Resolution No. 4.373, of 2014;

IV - the transfer of application by a non-resident investor in the financial and capital markets, in accordance with Regulation Annex I to Resolution No. 4.373, of 2014, in external credit and foreign direct investment operations governed by Resolution BCB No. 278, of 2022, and vice versa.

Sole Paragraph. Simultaneous foreign exchange operations are considered, for all purposes, effective operations, observing that such operations:

I - are constituted by a sale operation and a purchase operation of the same value, currency, contract date and settlement date, both of which are linked to each other in the Foreign Exchange System, have immediate settlement and, according to Annex VII to Resolution BCB No. 277, of December 31, 2022, have a form of delivery of the foreign currency classified as “no movement of funds”; and

II - exempt movements of national currency, with the delivery and receipt of national currency being considered effective for all purposes, including for settlement of foreign exchange operations.” (NR)

“Art. 108-D. For any financial movement with the abroad, the RDE Portfolio code must appear in the information on the foreign exchange operation or the movement of funds of third-party interest in a non-resident’s real account.” (NR)

“Art. 108-O. The incorporation into the portfolio of a non-resident in the Country of a certificate of deposit of securities – Brazilian Depositary Receipts (BDR) – issued by a depositary institution, whose underlying asset is a security owned by the same non-resident investor and deposited with the custodian institution of the BDR program, must be carried out through simultaneous contracting of foreign exchange or simultaneous postings in a non-resident’s real account of third-party interest, in the following manner:

I - foreign exchange contract for inflow classified as investment in financial and capital markets in Brazil in the manner of this Section; and

II - foreign exchange contract for outflow classified as sale of BDR to non-resident investor.” (NR)

Art. 3 (Revoked, from 1/1/2025, by Joint Resolution No. 13, of 12/3/2024.)

Art. 4 The sole paragraph of art. 41 of Resolution BCB No. 278, of 2022, is revoked.

Art. 5 This Resolution enters into force:

I - on the date of its publication, regarding:

a) art. 1, in the part that alters item I of art. 46 of Resolution BCB No. 278, of 2022; and

b) art. 2, in the part that alters art. 8 of Resolution BCB No. 281, of 2022; and

II - on November 1, 2023, regarding the remaining alterations.

OTÁVIO RIBEIRO DAMASO
Director of Regulation