Resolution CMN No. 2309 — Regulates and Consolidates Norms Regarding Leasing Operations

RESOLUTION NO. 2309

Regulates and consolidates the norms regarding leasing operations.

The CENTRAL BANK OF BRAZIL, in accordance with Article 9 of Law No. 4,595 of December 31, 1964, makes public that the MONETARY COUNCIL, in a session held on August 28, 1996, based on the provisions of Law No. 6,099 of September 12, 1974, with the amendments introduced by Law No. 7,132 of October 26, 1983,

RESOLVES:

Article 1. Approve the attached Regulation, which regulates the operational leasing modality, authorizes the practice of leasing operations with individuals in general, and consolidates norms regarding financial leasing.

Article 2. The Central Bank of Brazil is authorized to adopt the measures and issue the norms deemed necessary for the execution of the provisions of this Resolution.

Article 3. This Resolution enters into force on the date of its publication.

Article 4. Resolutions Nos. 980 of December 13, 1984, 1,452 of January 15, 1988, 1,474 of March 29, 1988, 1,681 of January 31, 1990, 1,686 of February 21, 1990, and 1,769 of November 28, 1990, Article 2 of Resolution No. 2,276 of April 30, 1996, Circulars Nos. 903 of December 14, 1984, 2,064 of October 17, 1991, and Article 2 of Circular No. 2,706 of July 18, 1996 are hereby repealed.

Brasília, August 28, 1996

Gustavo Jorge Laboissière Loyola
President

ANNEX
CHAPTER I

On the Practice of Leasing

Article 1. Leasing operations with the tax treatment provided for in Law No. 6,099 of September 12, 1974, amended by Law No. 7,132 of October 26, 1983, may only be carried out by legal entities whose main business activity is the practice of leasing operations, by multiple banks with a leasing portfolio, and by financial institutions that, in accordance with Article 13 of this Regulation, are authorized to contract leasing operations with the seller of the asset itself or with legal entities affiliated with or interdependent with it.

Sole Paragraph. The operations provided for in this article may be of the financial and operational types.

Article 2. For the purpose of carrying out the operations provided for in this Regulation, leasing companies and the financial institutions cited in the previous article must maintain a technical department properly structured and supervised directly by one of their directors.

Sole Paragraph. The companies and institutions must communicate to the Regional Office of the Central Bank of Brazil to which they are subject the name of the director responsible for the leasing area.

CHAPTER II

On the Constitution and Operation of Leasing Companies

Article 3. The constitution and operation of legal entities whose main business activity is the practice of leasing operations, called leasing companies, depend on authorization from the Central Bank of Brazil.

Article 4. Leasing companies must adopt the legal form of corporations, and the same conditions established for the operation of financial institutions in Law No. 4,595 of December 31, 1964, and subsequent legislation relating to the National Financial System apply to them, as applicable. The expression "Leasing" must obligatorily appear in their corporate name.

Sole Paragraph. The expression "Leasing" in the corporate name is exclusive to the companies referred to in this article.

CHAPTER III

On the Modalities of Leasing

Article 5. Financial leasing is considered the modality in which:

I - the installments and other payments provided for in the contract, due by the lessee, are normally sufficient for the lessor to recover the cost of the leased asset during the contractual term of the operation and, additionally, obtain a return on the invested resources;

II - maintenance, technical assistance, and services related to the operability of the leased asset are the responsibility of the lessee;

III - the price for exercising the purchase option is freely agreed upon, and may even be the market value of the leased asset.

Article 6. Operational leasing is considered the modality in which:

I - the installments to be paid by the lessee include the cost of leasing the asset and the services inherent to making it available to the lessee, and the total of such payments may not exceed 75% (seventy-five percent) of the cost of the leased asset;

II - maintenance, technical assistance, and services related to the operability of the leased asset are the responsibility of the lessor or the lessee;

III - the price for exercising the purchase option is the market value of the leased asset.

Sole Paragraph. The operations referred to in this article are exclusive to multiple banks with a leasing portfolio and leasing companies.

CHAPTER IV

On Leasing Contracts

Article 7. 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 constituting the object of the contract, with all characteristics allowing for their perfect identification;

II - the leasing term;

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

IV - the method of payment of installments 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 lessee to exercise the right to opt for contract renewal, return of the assets, or acquisition of the leased assets;

VI - the grant 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 expenses and additional charges, including technical assistance, maintenance, and services inherent to the operability of the leased assets, admitting, for financial leasing:

a) 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;

b) the adjustment of the price established for the purchase option and the guaranteed residual value;

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

IX - the other responsibilities that may be agreed upon, resulting from:

a) improper or inappropriate use of the leased assets;

b) insurance provided for coverage of risks to the leased assets;

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

d) burdens arising from defects in the leased assets;

X - 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;

XI - the obligations of the lessee in the event of default, destruction, deterioration, or disappearance of the leased assets;

XII - the right of the lessee to transfer to third parties in the country, provided there is express consent from the lessor entity, its rights and obligations arising from the contract, with or without joint and several co-responsibility.

Article 8. Contracts must establish the following minimum leasing terms:

I - for financial leasing:

a) 2 (two) years, counted from the date of delivery of the assets to the lessee, evidenced by a term of acceptance and receipt of the assets, to the due date of the last installment, when it concerns leasing of assets with a useful life equal to or less than 5 (five) years;

b) 3 (three) years, observing the definition of the term in the previous item, for the leasing of other assets;

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

Article 9. Leasing contracts for assets whose acquisition was funded with resources from loans contracted, directly or indirectly, abroad must be signed with a foreign exchange variation clause.

Article 10. The leasing operation will be considered as a sale with installment payments if the purchase option is exercised before the respective minimum term established in Article 8 of this Regulation has elapsed.

CHAPTER V

On Leasing Operations

Article 11. Movable assets, of national or foreign production, and immovable assets acquired by the lessor entity for the lessee's own use, according to the latter's specifications, may be subject to leasing.

Article 12. It is permitted to carry out leasing operations with individuals and legal entities, as lessees.

Article 13. Leasing operations contracted with the seller of the asset itself or with entities affiliated with or interdependent with it may only be contracted in the modality of financial leasing, applying to them the same conditions fixed in this Regulation.

Paragraph 1. The operations referred to in this article may only be carried out with legal entities, as lessees.

Paragraph 2. Multiple banks with investment, development, and/or real estate credit portfolios, investment banks, development banks, savings banks, and real estate credit companies may also carry out the operations provided for in this article.

Article 14. It is permitted to the lessor entity, in the event of return or recovery of the leased assets:

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

II - to alienate or lease the said assets to third parties.

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

CHAPTER VI

On Subleasing

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

Sole Paragraph. The leasing operations provided for in this article are subject to registration with the Central Bank of Brazil.

Article 16. Multiple banks with a leasing portfolio and leasing companies are permitted to acquire, in the domestic market, rights and obligations arising from leasing contracts entered into with entities abroad, with the exclusive purpose of subsequent subleasing of the assets, in accordance with the previous article.

Article 17. Subleasing operations are prohibited when there is affiliation, direct or indirect, or interdependence between the lessor domiciled abroad and the sublessee domiciled in the country, in accordance with Article 27 of this Regulation.

Article 18. Multiple banks with a leasing portfolio and leasing companies must pass on to sublessees domiciled in the country, in financial leasing contracts carried out in accordance with this Regulation, all costs, rates, taxes, commissions, other expenses related to the acquisition of the leased asset, and other conditions agreed upon in the contract signed with the entities abroad, plus their remuneration, including those related to the eventual acquisition of rights and obligations of contracts, with such expenses and charges being able to be incorporated into the cost of the leased asset.

CHAPTER VII

On Sources of Resources

Article 19. Leasing companies may employ in their activities, in addition to their own resources, those derived from:

I - loans contracted abroad;

II - loans and financing from national financial institutions, including transfers of external resources;

III - official financial institutions, intended for transfers of specific programs;

IV - placement of publicly or privately issued debentures and promissory notes intended for public offering;

V - assignment of leasing contracts, as well as the credit rights arising therefrom;

VI - interbank deposits, in accordance with current regulation;

VII - other forms of resource collection, authorized by the Central Bank of Brazil.

Article 20. Leasing companies and financial institutions authorized to carry out the operations provided for in this Regulation may contract loans abroad, with the following purposes:

I - obtaining resources for the acquisition of assets for leasing purposes;

II - acquisition of credit rights arising from leasing contracts containing a foreign exchange variation clause;

III - acquisition of leasing contracts containing a foreign exchange variation clause, observing the content of Article 22 of this Regulation.

Article 21. Leasing companies may contract loans, financing, resource transfers, and provide guarantees with controlling, affiliated, or interdependent financial institutions, provided that the respective charges must be those normally charged in operations of the kind carried out with third parties.

Article 22. The assignment and acquisition of leasing contracts in the domestic market, except those referred to in Article 13 of this Regulation, are restricted to multiple banks with a leasing portfolio and leasing companies.

Sole Paragraph. The assignment and acquisition of contracts referred to in Article 13 of this Regulation are permitted among the institutions authorized to carry out this modality of operation.

Article 23. The acquisition of 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 therefrom, may only be carried out using resources from loans obtained abroad.

Article 24. Leasing companies may offer, as guarantee for loans they contract in the domestic or external markets, the pledge of credit rights from leasing contracts.

Article 25. The assignment of leasing contracts, as well as the credit rights arising therefrom, to entities domiciled abroad depends on prior authorization from the Central Bank of Brazil.

Article 26. Multiple banks with investment or development portfolios, investment banks, and development banks may use resources from external loans, contracted in accordance with Resolution No. 63 of August 21, 1967, in leasing operations referred to in Article 13 of this Regulation.

Paragraph 1. The operations carried out in accordance with this article may only be contracted with legal entities as lessees.

Paragraph 2. The portion of external resources that is amortized by the payment of installments may be used in new leasing operations, transfers to clients, or alternative applications authorized for external resources intended for transfers.

Paragraph 3. Respecting the minimum terms provided for in Article 8, item I, of this Regulation, the operations referred to 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.

CHAPTER VIII

On Affiliation and Interdependence

Article 27. For the purposes of Article 2, sole paragraph, of Law No. 6,099 of September 12, 1974, and this Regulation, an entity is considered affiliated or interdependent:

I - in which the lessor entity participates, directly or indirectly, with 10% (ten percent) or more of the capital;

II - in which administrators of the lessor entity, their spouses, and respective relatives up to the second degree participate, jointly or individually, with 10% (ten percent) or more of the capital, directly or indirectly;

III - in which shareholders with 10% (ten percent) or more of the capital of the lessor entity participate with 10% (ten percent) or more of the capital, directly or indirectly;

IV - that participates with 10% (ten percent) or more of the capital of the lessor entity, directly or indirectly;

V - whose administrators, their spouses, and respective relatives up to the second degree participate, jointly or individually, with 10% (ten percent) or more of the capital of the lessor entity, directly or indirectly;

VI - whose partners, limited partners, or shareholders with 10% (ten percent) or more of the capital also participate in the capital of the lessor entity with 10% (ten percent) or more of its capital, directly or indirectly;

VII - whose administrators, in whole or in part, are the same as those of the lessor entity.

CHAPTER IX

Prohibitions

Article 28. It is prohibited to leasing companies and the financial institutions cited in Article 13 of this Regulation to contract leasing operations with:

I - affiliated or interdependent individuals and legal entities;

II - administrators of the entity and their respective spouses and relatives up to the second degree;

III - the manufacturer of the leased asset itself.

Article 29. It is prohibited to leasing companies to enter into loan agreements with non-financial individuals and legal entities.

CHAPTER X

Final Provisions

Article 30. The Central Bank of Brazil may fix criteria for the distribution of leasing installments during the contractual term, taking into account the adequate compliance with the minimum terms fixed in Article 8 of this Regulation.

Article 31. The liquidity of leasing companies, when not held in cash, may be freely applied in the market, observing the limits and other regulatory norms pertinent to each type of financial application.

Article 32. The norms in force for financial institutions in general apply to leasing companies, insofar as they concern the exclusive competence of the Central Bank of Brazil for granting the authorizations provided for in item X of Article 10 of Law No. 4,595 of December 31, 1964, as well as for approving the assumption of any positions in the administration of said companies, including in consultative, supervisory, or similar bodies, in accordance with said legislation and subsequent regulation.

Article 33. Operations carried out in disagreement with the provisions of this Regulation do not characterize themselves as leasing.