CMN Resolution No. 4,977 — Regulates Financial Leasing Operations with Tax Treatment under Law No. 6,099 of September 12, 1974

Resolution No. 4,977

CMN RESOLUTION
NO. 4,977, OF DECEMBER 16, 2021

Regulates financial leasing operations with the tax treatment provided for in Law No. 6,099, of September 12, 1974.

The Central Bank of
Brazil, in accordance with Art. 9 of Law No. 4,595, of December 31, 1964, makes public that the National Monetary Council, in a session held on December 16, 2021, based on Law No. 6,099, of September 12, 1974, and Art. 42 of Law No. 10,150, of December 21, 2000,

R E S O L V E D:

CHAPTER I
OF THE OBJECT AND SCOPE OF APPLICATION

Art. 1. This Resolution regulates financial leasing operations with the tax treatment provided for in Law No. 6,099, of September 12, 1974.

§ 1. The operations covered by this Resolution are exclusive to leasing companies, multiple banks with a financial leasing portfolio, and, in the case of the operations covered by Art. 11, also to multiple banks with investment, development, or real estate credit portfolios, investment banks, development banks, savings banks, and real estate credit companies.

§ 2. To carry out the operations covered by the main text, multiple banks with a financial leasing portfolio must maintain:

I - a director responsible for the financial leasing area and inform their name to the Central Bank of Brazil; and

II - a technical department specialized in financial leasing, properly structured and supervised directly by the director mentioned in item I.

CHAPTER II
OF THE MODALITIES OF FINANCIAL LEASING

Art. 2. The financial leasing operations covered by this Resolution are classified into operational financial leasing and financial financial leasing.

Art. 3. The classification of the financial leasing operation as operational or financial must be made at the time of contracting and reviewed:

I - at the time of exercising the renewal option that, at the beginning of the contract, is not considered reasonably certain; and

II - in the case of contractual alteration.

CHAPTER III
OF DEFINITIONS

Art. 4. For the purposes of this Resolution, the following are considered:

I - operational financial leasing: the modality of leasing in which:

a) the payments to be made by the lessee include the cost of leasing the asset and the services inherent to making it available to the lessee, and the present value of payments cannot exceed 90% (ninety percent) of the cost of the leased asset;

b) the effective term of the financial leasing is less than 75% (seventy-five percent) of the useful economic life of the leased asset;

c) the price for exercising the purchase option is the market value of the leased asset;

d) the contract does not provide for payment of a guaranteed residual value;

e) the leased asset is sufficiently generic, so as to allow its subsequent leasing to another lessee without significant modifications; and

f) losses resulting from contract cancellation after the period of unlikely cancellation are not substantially borne by the lessee;

II - financial financial leasing: the leasing modality that is not classified as operational financial leasing;

III - period of unlikely cancellation: the minimum period of the contract during which the lessee has the option to terminate the financial leasing only:

a) in the cases provided for in legislation;

b) with the permission of the lessor; or

c) by payment, by the lessee, of an additional amount such that the continuation of the financial leasing is considered, from the beginning, reasonably certain;

IV - effective term of financial leasing: the period of unlikely cancellation, together with:

a) periods covered by the lessee's option to extend the lease term, if the exercise of this option is considered reasonably certain, at the beginning of the financial leasing; and

b) periods covered by the lessee's option to terminate the lease, if the non-exercise of this option is considered reasonably certain, at the beginning of the financial leasing; and

V - useful economic life: the remaining period from the start of the financial leasing term, during which the leased asset is expected to be economically usable, regardless of the periods defined for tax purposes and the contract end date.

§ 1. For the purposes of the definition of operational financial leasing, covered by item I of the main text, maintenance, technical assistance, and related services for the operation of the leased asset may be the responsibility of the lessor or the lessee.

§ 2. For the purposes of the provision in item "a" of item I of the main text, in the calculation of the present value of payments:

I - the present value of payments related to the additional period resulting from the exercise of the renewal option or any form of contractual extension considered reasonably certain at the beginning of the contract must also be considered; and

II - the rate equivalent to the financial charges contained in the contract must be used.

§ 3. In the situations mentioned in items I and II of the main text of Art. 3, it must be considered, for the purposes of the provisions in items "a" and "b" of item I of the main text:

I - the cost of the asset on the date of exercising the renewal option or contractual alteration; and

II - the remaining effective term of the financial leasing, the present value of the remaining payments, and the useful economic life of the asset, all from the date of exercising the renewal option or contractual alteration.

§ 4. To evaluate whether the exercises of the options to extend the term and to terminate the lease are or are not reasonably certain, all relevant facts and circumstances that create an economic incentive for the lessee's decision must be considered, including:

I - the comparison of the contracted value of payments with the estimated market value in the period covered by the option;

II - the improvements to the leased asset with expected significant economic benefits in the period covered by the option;

III - the costs or operational difficulties resulting from the non-continuation of the operation; and

IV - the importance of the leased asset for the lessee's operations, its degree of specialization, its location, and the availability of adequate alternatives.

Art. 5. For the purposes of
Law
No. 6,099, of 1974, and this Resolution, the following are considered:

I - affiliate: the entity over which the institution has significant influence, as defined in specific regulation on accounting measurement and recognition of investments in affiliates, controlled entities, and jointly controlled entities held by financial institutions and other institutions authorized to operate by the Central Bank of Brazil; and

II - interdependent: the natural or legal person who is a related party of the institution, as defined in the specific regulation that provides for the conditions and limits for the realization of credit operations with related parties by financial institutions and by leasing companies, for the purposes of Art. 34 of Law No. 4,595, of December 31, 1964.

CHAPTER IV
OF LEASE CONTRACTS

Art. 6. Financial leasing contracts must be formalized by public or private instrument, and must contain, at a minimum, the following specifications:

I - the description of the assets that constitute the object of the contract, with all characteristics that allow for their perfect identification;

II - the lease term;

III - the value of the payments or the formula for calculating the payments, as well as the criterion for their adjustment;

IV - the method of payment of the payments in determined periods, not exceeding 1 (one) semester, except in the case of operations benefiting rural activities, when payment may be fixed in periods not exceeding 1 (one) year;

V - the conditions for the exercise by the lessee of the right to opt for contract renewal, return of assets, or acquisition of the leased assets;

VI - the granting to the lessee of an option to purchase the leased assets, with the price for its exercise or criterion usable in its determination to be established;

VII - the rate equivalent to the financial charges of the operation;

VIII - the expenses and additional charges, including technical assistance, maintenance, and services inherent to the operation of the leased assets;

IX - the conditions for eventual replacement of the leased assets, including in the event of a loss, by others of the same nature, which better meet the convenience of the lessee, with the replacement to be formalized through a contractual addendum;

X - the other responsibilities that may be agreed upon, as a result of:

a) improper or inappropriate use of the leased assets;

b) insurance provided for coverage of risk of the leased assets;

c) damages caused to third parties by the use of the assets; and

d) burdens arising from defects in the leased assets;

XI - the right of the lessor to inspect the assets subject to leasing and to require the lessee to take measures indispensable to preserving the integrity of said assets;

XII - the obligations of the lessee, in the cases of:

a) default; and

b) destruction, loss, or disappearance of the leased assets; and

XIII - the right of the lessee to transfer to third parties in the country, provided there is express consent of the lessor, the rights and obligations arising from the contract, with or without joint liability.

§ 1. For the definition of the equivalent rate mentioned in item VII of the main text, the rate that equalizes the value of the leased asset, on the date of contracting, to the present value of all receipts and payments provided for over the contractual term must be considered, including, in the absence of a guaranteed residual value, the probable present value of realization of the leased asset at the end of the contract, minus the costs of selling the asset.

§ 2. With regard to the expenses and additional charges mentioned in item VIII of the main text, in the case of financial financial leasing, it is admitted:

I - the provision for the lessee to pay a guaranteed residual value at any time during the validity of the contract, with the payment of the guaranteed residual value not constituting the exercise of the purchase option; and

II - the adjustment of the price established for the purchase option and the guaranteed residual value.

Art. 7. Contracts must observe the following minimum lease terms:

I - for financial financial leasing:

a) 2 (two) years, comprising between the date of delivery of the assets to the lessee, embodied in a term of acceptance and receipt of the assets, and the due date of the last payment, when it is a lease of assets with a useful life equal to or less than 5 (five) years; and

b) 3 (three) years, comprising between the date of delivery of the assets to the lessee, embodied in a term of acceptance and receipt of the assets, and the due date of the last payment, when it is a lease of assets with a useful life greater than 5 (five) years; and

II - for financial operational leasing, 90 (ninety) days.

Sole Paragraph. If the purchase option is exercised before the respective minimum period established in the main text has elapsed, the operation will be considered as an installment sale.

Art. 8. It is permitted to agree on a foreign exchange variation clause in financial leasing contracts for assets whose acquisition was funded with resources from loans contracted directly or indirectly abroad.

CHAPTER V
OF LEASING OPERATIONS

Art. 9. Assets acquired by the lessor, according to the specifications of the lessee and for the latter's own use, may be the object of leasing.

Art. 10. Contracting operations with lessees domiciled or headquartered abroad is only admitted in the case of leasing of assets produced in the country.

Art. 11. Financial leasing operations in which the lessee is the seller of the asset itself or an affiliate or interdependent person (sale-and-leaseback) may only be contracted:

I - in the modality of financial financial leasing, under the conditions established in this Resolution; and

II - with legal entities in the capacity of lessees.

Art. 12. Multiple banks with investment or development portfolios, investment banks, and development banks may use resources from external loans in financial leasing operations covered by Art. 11.

§ 1. The portion of external resources that is amortized by the payment of installments may be used in new financial leasing operations, transfers to clients, or applications authorized for external resources destined for transfers.

§ 2.
Respecting the minimum periods provided for in item I of the main text of Art. 7, the operations mentioned in this article may only be carried out for terms equal to or less than that of the final amortization of the loan contracted abroad, the resources of which must remain in the country according to the payment term conditions abroad that are admitted by the Central Bank of Brazil at the time of authorization of their entry.

Art. 13. It is permitted to the lessor, in the cases of return or recovery of the leased assets:

I - keep the assets in its assets, for a maximum period of 2 (two) years; and

II - alienate or lease to third parties said assets.

Sole Paragraph. The provisions of this article also apply to assets received in payment in kind.

CHAPTER VI
OF SPECIAL REAL ESTATE LEASING WITH PURCHASE OPTION

Art. 14. It is permitted to multiple banks with commercial and real estate credit portfolios and to the Federal Savings Bank to carry out Special Real Estate Leasing with Purchase Option operations, in accordance with Law No. 10,150, of December 21, 2000.

CHAPTER VII
OF SUBLEASING

Art. 15. Leasing companies and multiple banks with a financial leasing portfolio may carry out leasing operations with lessors domiciled abroad, solely for the subsequent subleasing of assets to legal entities in the country.

§ 1. The leasing operations provided for in the main text are subject to registration with the Central Bank of Brazil.

§ 2. Subleasing operations are prohibited when the lessor domiciled abroad is an affiliate or interdependent party of the sublessee domiciled in the country.

Art. 16. It is permitted to leasing companies and multiple banks with a financial leasing portfolio to acquire, in the domestic market, rights and obligations arising from leasing contracts entered into with lessors abroad, with the exclusive purpose of subsequent subleasing of the assets, in accordance with Art. 15.

Art. 17. Leasing companies and multiple banks with a financial leasing portfolio must pass on to sublessees domiciled in the country, in financial financial leasing contracts, carried out in accordance with this Resolution, all costs, rates, taxes, commissions, other expenses related to obtaining the leased asset, and other conditions agreed upon in the contract signed with the lessor domiciled abroad, plus their remuneration, including those related to the eventual acquisition of rights and obligations of contracts, such expenses and charges may be incorporated into the cost of the leased asset.

CHAPTER VIII
OF ASSIGNMENT AND ACQUISITION OPERATIONS OF FINANCIAL LEASING CONTRACTS

Art. 18. Assignment and acquisition operations of financial leasing contracts in the domestic market are restricted to the institutions mentioned in § 1 of Art. 1.

Sole Paragraph. Assignment and acquisition of the contracts covered by Art. 11 are permitted between institutions authorized to practice the modality of operation mentioned in said provision.

Art. 19. Assignment of financial leasing contracts, as well as the credit rights arising from them, to entities domiciled abroad depends on prior authorization from the Central Bank of Brazil.

Art. 20. Acquisition of financial leasing contracts whose leased assets were acquired with resources from external loans or that contain a foreign exchange variation clause, as well as the credit rights arising from them, may only be carried out using resources from loans obtained abroad.

CHAPTER IX
OF PROHIBITIONS

Art. 21. It is prohibited to contract financial leasing operations, by the institutions mentioned in § 1 of Art. 1, with:

I - their affiliates or interdependent parties; and

II - the manufacturer of the leased asset itself.

CHAPTER X
FINAL PROVISIONS

Art. 22. The Central Bank of Brazil is authorized to issue norms and adopt measures necessary for the execution of the provisions of this Resolution, including establishing criteria for the distribution of leasing payments during the contractual term, taking into account the adequate compliance with the minimum periods established in Art. 7.

Art. 23. Operations carried out in disagreement with the provisions of this Resolution do not qualify as financial leasing with the tax treatment provided for in Law No. 6,099, of 1974.

Art. 24.
Repealed:

I - Resolution No. 2,309, of August 28, 1996;

II - Resolution No. 2,465, of February 19, 1998;

III - Resolution No. 2,523, of July 30, 1998;

IV - Resolution No. 2,595, of February 25, 1999;

V - Resolution No. 2,659, of October 28, 1999;

VI - Resolution No. 2,789, of November 30, 2000;

VII - Resolution No. 3,175, of February 20, 2004; and

VIII - Resolution No. 4,696, of November 27, 2018.

Art. 25.
This Resolution enters into force on January 1, 2022.

Roberto de Oliveira Campos Neto
President of the Central Bank of Brazil