From: akemi [mailto:email@example.com]
Sent: Thursday, July 16, 2009 10:20 AM
To: Director - FASB
Subject: File Reference nº 1680-100
OFFICIAL LETTER No. 013/2009
São Paulo, July 16th, 2009.
Chief Technical Officer
Financial Accounting Standards Board
Ref.: Leasing – Preliminary Considerations – File No. 1680-100
ABEL – Associação Brasileira das Empresas de Leasing (Brazilian Association
of Leasing Companies) as a representative entity of both the Lessor and the
Multiple Banks with Leasing Portfolio in the Brazilian market, in
accomplishment to the abovementioned call for Public Consultation concerning
a new leasing standard, respectfully provides hereby the following suggestions
which, according to our understanding, shall allow for greater transparency and
comparability of financial statements from the parts involved in such
In Brazil, leasing was established by Law No. 6.099, dated from September
12th, 1974, under the name of Arrendamento Mercantil - Leasing and totally
focused on income tax. It established the adjustments required for income
revenue assessment by the lessor, in which the operations are adjusted at
current value, with the purpose of adjusting either the deficiency or the
supervenience of leased assets depreciation (whose monthly appropriation
occurs for fiscal purposes). Articles 6 and 7 of this Law set forth that the
Conselho Monetário Nacional (National Monetary Council) shall establish the
threshold indexes for the sum of the unrequited taxes, increased by the price
for exercising the purchase option on leasing agreements, in addition to
granting to Banco Central do Brasil (Brazilian Central Bank) the control over
and inspection of such agreements.
Therefore, in Brazil, leasing has a clear and specific tax treatment, and leased
assets shall be recorded on the lessors’ assets. This position is reinforced by
the recent Law No. 11.941, dated from May 27st,2009, which under article 61,
expressly sets forth that “The bookkeeping provided for under article 177 of
Law No. 6.404, dated from December 15th, 1976, when carried out by financial
institutions and other entities authorized to operate by Brazilian Central Bank,
including those organized as public-held companies, shall observe the
provisions under Law No. 4.595, dated from December 31st, 1964, and
regulatory acts deriving thereof.” It essentially means that all leasing
agreements shall be subject to the control and inspection of Brazilian Central
Bank pursuant to the standards established by the National Monetary Council,
according the Resolution nº 3617, dated from September 30st, 2008 including in
regard to the corresponding recording. This positioning is extremely important,
once, in Brazil, the lessor are authorized to operate by Brazilian Central Bank,
thus, in compliance with all the requirements of a financial institution, while, in
other countries, these operations are strictly treated as handled by commercial
and service companies.
Therefore, in the Brazilian marketplace, legal property is perfectly defined for
Being the asset recorded as part of the lessee’s assets, receiving a treatment
in disagreement with our legal framework as intended by IASB, shall, for sure,
generate contradictory decisions from the Judiciary, which, for many times,
construes the leasing agreements as a complex and atypical agreement.
We believe that your concern about lessees have not been forced to report on
their financial statements the liabilities arising out of leasing agreements,
results the fact that is an important deficiency of information for the analysis of
such financial statements has been occurring. But such information deficiency
may be perfectly provided for by the specific detailing, on an explanatory note,
of the liabilities deriving of leasing agreements.
If we take into consideration the treatment given to finance leases, which have
particular characteristics, such as: debt characterization, property proving and
composition of fiduciary guarantees - characteristics which shall never be
confused with the characteristics particular to leasing agreements, we
understand and emphatically defend that finance lease may not be handled as
if it were a financing, as proposed by some approaches.
In Brazil, Ordinance MF No. 564/78, issued by the Ministry of Finance and
Resolution No. 2.309/96, issued by the National Monetary Council, provide for
the use of the Guaranteed Residual Value, to be charged from the lessee with
the purpose of assuring the lessor, in case the leased asset is returned or
contractual conditions are not accomplished, the recovery of the values
invested for the purchase of such leased assets.
Guaranteed Residual Value paid in advance or through installments shall be
used for settling the price charged for exercising the purchase option of the
On the lessee’s side, he shall choose a flow according to the payment
capability, composed of unrequited taxes and residual value shares, in addition
to specifying on his financial statements the commitments undertaken.
We are aware and reiterate that the legal property belongs to the lessors and,
therefore, shall be recorded on their financial statements, under the terms of
Law No. 6.099/74, and other rules in force in the domestic marketplace.
We emphasize that according to the Law abovementioned, the lessee shall
have the option of either purchasing the leased asset or renewing the leasing
agreements at the end of the contractual term, and thus, unconditional transfer
of the property to the lessee does not take place.
As for the operational leases, it shall always provide for a market-value
purchase option, and the asset shall be fixed at the lessor’s as well.
The adoption of the premises above shall make the parts to clearly report the
balance of the commitments deriving from leasing agreements, without
preventing several structuring actions from being conceived during
negotiations, always observing the wish of the parties, preserving the
accounting and tax framework, so that investors, shareholders, inspectors and
the society may compare their effects to the full.
We understand that this is the appropriate time for establishing a strong and
accurate guideline for the recording of leasing agreements without, of course,
disregarding the tax characteristics of each country, but allowing the
comparison and transparency required for business, and thus avoiding the
arising of unexpected risks.
Looking forward to the acceptance of our considerations above, we place
ourselves at your disposal for any clarifications deemed necessary.
OSMAR RONCOLATO PINHO
Attachments in English:
Laws No. 6.099/74 and 7.132/83
Law No. 11.941/09 (Arts. 16, 37 and 61)
Resolutions No. 2.309/96 and 3.617/08
Ordinances No. 564/78 and 140/84
If you have any problem, please contact us. Tel: 55 11 3095.9100 - email:
The original letter will be send by Fedex.
ORDINANCE MF # 140, OF JULY 27, 1984
Income Tax - Establishes norms relative to
lease agreement considerations as regards the
inclusion into the net profit on the taxable period
in which they were due.
The State Minister of Finance, in the use of his attributes, decides:
I. Lease agreement installments shall be included into the net profit of the
taxable period in which they are due.
II. Payments regarding anticipation of the Guarantee Residual Value or
payment of the purchase option shall be treated as the lessor’s liabilities and the
lessee’s assets, not to be taken into consideration on determining effective profits.
III. On calculating the depreciation quote of goods object of lease agreement,
the normally admitted useful life time shall be reduced by 30% (thirty percent), barred
the employment of the depreciation acceleration coefficient, under any
circumstances, except for the contents of sub-item III.3:
III.1. depreciation shall be recognized as it is incurred;
III.2. the fact that the goods is destined to lease shall not permit the lessor to
apply depreciation rates other than those admitted for companies that employ own
III.3. as regards projects approved for the lessee by the Industrial
Development Council, the lessor shall be allowed to deduce incentivized accelerated
depreciation as set forth under articles 203 and 204 of the Income Tax Regulation
(Decree # 85,450 of December 4, 1980).
IV. Depreciation rates calculated in any manner other than that set forth under
item III, even if based upon technical opinions issued by official bodies, shall not be
accepted for agreements entered into after the entry of the present Ordinance into
V. Lease agreements subject to agreements entered into prior to the entry of
the present Ordinance in to force shall remain regulated by Ordinances # 564 of
November 3, 1978 and # 376-E of September 28, 1976.
VI. The dispositions under Ordinance # 564 of November 3, 1978 shall apply
to operations subject to lease agreements entered into from the present date on
except as pursuant to the present Ordinance.
VII. The present Ordinance shall enter into force on the date of its publication.
Minister of Finance
(Official Gazette of Jul. 30, 1984)
ORDINANCE MF # 564 OF NOVEMBER 3, 1978
Income Tax - On the verification of results, for tax purposes, of lease agreements
The State Minister of Finance, in the use of his attributes, and
Whereas Decree-Law # 1,598 of December 26, 1977, has introduced substantive changes to
the verification of legal entities’ results;
Whereas lease agreements display specific features that require differentiated tax treatment;
Whereas the convenience of adequating legal dispositions with the need for providing lease
companies with appropriate accounting procedures and Financial Statements, decides:
1. The present Ordinance disciplines Income Tax Treatment on lease agreements as
provided under Law # 6,099, of September 12, 1974 and rendered by societies authorized to
operate by the Central Bank of Brazil.
2. For the purposes of the present Ordinance:
Acquisition Cost: Shall be construed to be the amount of the expenditure incurred by the
lessor to acquire the goods destined to lease. Transportation, installation and insurance costs and
the costs of taxes paid on acquisition, as well as commitment clause, recorded as revenue pursuant
to item 5, capitalized in order to comply agreed conditions, shall comprise the cost of acquisition,
where they constitute the lessor’s burden and must be recovered through the lease agreement.
Guarantee Residual Value: shall be the amount stipulated in the agreement for exercising the
purchase option or the amount contractually guaranteed by the lessee as the minimum to be
perceived by the lessor on sale of the leased goods to third parties, should the purchase option not
3. The cost of acquisition shall be accounted under the lessor’s fixed assets ledger.
5. Revenues arising from agency or negotiation commissions shall accrue the results of the
corporate period in which the agreement was entered into. Those arising from commitment fees
shall accrue the results of corporate periods in which they are due.
9. The results verified when the leased goods are sold shall be treated as follows:
I. in the event of the exercise of the purchase option, or sale to third parties with the appropriation,
by the lessor, of the Guarantee Residual Value, the difference between the sale price Guarantee
Residual Value shall be taken:
a) as period results if positive;
b) as deferred asset, for amortization in the course of the remaining 70% (seventy percent) of the
normal useful life time of the goods, if negative;
II. in the event of sale to a legal or natural entity not connected to the lessor or to the lessee by
common economic interests, with the appropriation, by the lessor, of the entire sale price, the loss
or profit shall be taken as period results.
10. Once published, the present Ordinance shall promptly apply to any and all lease
agreements that may be entered into.
MÁRIO HENRIQUE SIMONSEN
Minister of Finance
(Official Gazette of Nov. 10, 1978)
Sets forth the criteria for accounting registration of fixed and deferred assets by financial institutions
and other institutions authorized to operate by Central Bank of Brazil.
CENTRAL BANK OF BRAZIL, in the form of art. 9th of Law No. 4.595, of December 31st, 1964,
makes public that the NATIONAL MONETARY COUNCIL, in session conducted on September 30th,
2008, based on art. 4th, items VIII and XII, of the aforementioned law, and at Law No. 6.099, of
September 12th, 1974, and in view of the provisions on art.179, items IV and V, of Law No. 6.404, of
December 15th, 1976, with wording provided by Law No. 11.638, of December 28th, 2007,
Art. 1st The financial institutions and other institutions authorized to operate by Central Bank of
Brazil must register in the Fixed Assets the rights which object are tangible assets intended to the
maintenance of entity’s activities or exercised with this purpose, including the ones arising from
operations which transfer to the entity the benefits, risks and control of such assets.
Sole Paragraph. The provisions on the caput do not apply to the assets object of lease
agreements which must be recorded in the fixed assets of leasing institutions, according to
Art. 2nd The institutions referred to in art. 1st must record in the Deferred Assets, solely, the
pre-operational expenses and the restructuring expenses which will effectively contribute to the
increase of the result of more than one social year and which do not configure only a reduction in costs
or increase on the operational effectiveness.
Sole Paragraph. The linking of expenses and expenditures recorded in the Deferred Assets with
the increase on the result of more than one social year must be based in a technical statute elaborated by
the entity, consistent with the information used in other operational reports, showing, at least:
I – the conditions mentioned in the caput;
II - the calculation of the estimate regarding the period in which the benefits arising from the
applications will be enjoyed.
Art. 3rd The balances existing in the Fixed Assets and Deferred Assets constituted before the
effective date hereof, which have been recorded based on previous normative provisions, must be
maintained until their effective write off.
Art. 4th Central Bank of Brazil shall govern the procedures to be observed for adjustment of
the rules supported in the National Financial System Institutions (Cosif) Accounting Plan to the
Art. 5th This resolution becomes effective on the date of its publication.
Brasília, September 30th, 2008.
Henrique de Campos Meirelles
Presidency of the Republic
Civil Affairs Ministry
Legal Issues Department
LAW # 11,941 OF MAY 27th, 2009.
Makes Changes to federal tax legislation.
THE PRESIDENT OF THE REPUBLIC I do hereby make it known that the National Congress
hereby decrees, and I sanction the following Law:
TRANSITORY TAX REGIME
Art. 16. The changes introduced by Law # 11,638 of December 28 th, 2007 and by Articles 37
and 38 of this Law, that modify the criterion for acknowledgement of income, costs and expenses as
considered in the reckoning of the net profit of the tax year, as established by Article 191 of Law #
6,404 of December 15th1976, shall not have effects for the purposes of calculation of the real profit
of the corporate person subject to the Transitory Tax Regime (RTT), which means that, for tax
purposes, the methods and accounting criteria effective on December 31st, 2007 shall be
Sole Paragraph. The terms set forth in the caput to this Article shall be applied to the
regulations issued by the Securities Commission, based on the competence granted by Paragraph
3 of Article 177 of Law # 6,404 of December 15th1976, and also by the other regulatory bodies that
seek to bring the specific legislation into line with international accounting practices.
Art. 37. Law # 6,404 of December 15th, 1976 shall take effect with the following changes:
“Art. 177. .....................................................................
Paragraph 2: The Company shall record, exclusively in books or auxiliary registration, without
any changes to the mercantile booking accounts and the statements regulated by this Law, the
provisions of tax legislation or of special legislation about the activities that make up the object
thereof, which recommend, encourage or lead to the use of different accounting methods or criteria,
or that establish registrations, annotations or adjustments, or the preparation of other financial
Art. 61. The accounts mentioned in Article 177 of Law # 6,404 of December 15th 1976, when
made by financial institutions and other organizations authorized to operate by the Central Bank of
Brazil, including those established as open companies, shall follow the provisions of Law # 4,595 of
December 31st 1964, and the normative acts arising therefrom.
Law # 6,099, of September 12th 1974
On the tax treatment of lease agreements (Arrendamento Mercantil) and other measures.
The President of Brazil:
Let it be known that the National Congress has decreed and I sanction this Law:
Art. 1º - The tax treatment of lease agreements (Arrendamento Mercantil) shall be governed by
the herein dispositions.
Sole paragraph – Lease agreement is deemed to be an operation carried out between two
legal entities, for the purpose of leasing of goods acquired from third parties by the lessor, for
use by the lessee and pursuant to the latter’s specifications.
Art. 2º - The leasing of goods between directly or indirectly affiliated or interdependent legal
entities shall not be treated according to the present Law, as shall not that agreed with the
1º - The National Monetary Council shall specify, by regulation, affiliation and interdependence
2º - Only operations carried out by businesses whose main activity is leasing, or who centralize
such operations in a specialized department, with own accountancy, shall be entitled to the
treatment set forth hereunder.
Art. 3º - Goods destined to lease agreement shall be ledgered under a special fixed assets
account in the lessor’s books.
Art. 4º - The lessor shall maintain individualized records to allow verification of the event that
generated the revenue and of the effective lease period.
Art. 5º - Lease agreements shall contain the following conditions:
b) amount of each installment for set periods, not to exceed one semester;
c) purchase option or contract renewal option as the lessee’s entitlement;
d) purchase option price or criteria for its establishment, where this clause may exist.
Art. 6º - The National Monetary Council may set maximum indexes for the grand total of
installments, accrued of the purchase option price under lease agreements.
1º - Lease agreements extensions are subject to the rules under this article.
2º - The indexes referred to in this article shall be set with the cost of the lease agreement as
compared to that for sale financing in mind.
Art. 7º - All lease agreements shall be subject to control and fiscalization by the Central Bank of
Brazil, pursuant to norms set by the National Monetary Council, with the application, where fit, of
the contents of Law # 4,595, of December 31st, 1964, and subsequent legislation relative to the
National Financial System.
Art. 8º - The National Monetary Council may pass an ordinance disciplining the conditions under
which financial institutions may finance their affiliates or interdependents, specializing in lease
Art. 9º - Lease agreements agreed with the seller of the good or legal entities connected
thereto, through any of the relationships indicated under article 2 hereof, shall be entitled to the
tax treatment set forth hereunder.
1º - The operations described under this article shall be exclusive to financial institutions.
2º - The National Monetary Council shall establish conditions for the performance of
agreements described under this article.
3º - In the events described under this article, no deduction of the loss arising from the sale of
the goods shall be allowed at the time of the verification of profits taxable by Income tax.
Art. 10º - Only foreign manufactured goods listed by the National Monetary Council shall be the
object of lease agreements; the National Monetary Council may also establish conditions for
lease agreements thereof to companies whose stock control is held by foreign residents.
Art. 11º - Installments paid or credited pursuant to the lease agreement shall be deemed as the
lessee’s cost or expenses.
1º - The acquisition by the lessee of goods let in disregard to the herein dispositions shall be
deemed as a term purchase or sale agreement.
2º - The purchase price, in the event of the previous paragraph, shall be the grand total of the
installments paid for the duration of the lease, accrued of the installment paid as acquisition
3º - In the event described under 1º of the present article, sums that have already been
discounted by the acquirer as cost or expenses shall be accrued the profit subject to Income
Tax Treatment, in the fiscal period relative to the respective deduction.
4º - Taxes left unpaid in the event of the previous article shall be due with the accrual of
interest and inflation adjustment, fine and other legal penalties.
Art. 12º - Depreciation quotes of the price for the lease goods, calculated according to the
good’s useful life time, shall be admitted as costs borne by the lessors.
1º - The good’s useful life time is deemed to be the time period in the course of which effective
economic usage thereof may be expected.
2º - The Federal Revenues Secretariat shall publish, from time to time the admitted useful life
time, under 3º - In the meantime prior to the publication of useful life time terms referred to in
the previous paragraph, determination of such periods shall be effected pursuant to the norms
under Income Tax legislation for the purpose of the establishment of the depreciation rate.
Art. 13º - As regards sales operations related to goods that have been the object of lease
agreement, the non-depreciated balance shall be admitted as cost for the purpose of verifying
profits taxable by Income Tax.
Art. 14º - The negative difference between the outstanding accounting worth of the leased good
and its sale price at the fiscal period when the purchase option may have been exercised shall
not be deductible for the purpose of verifying profits taxable by Income Tax.
Art. 15º - In the event of the lessee’s exercising the purchase option, the good will be integrated
into the acquirer’s fixed assets at the purchase price.
Sole paragraph - For the purposes of this article, purchase price shall be the same as the price
paid by the lessee on exercising the purchase option.
Art. 16º - Lease agreements entered into with entities whose headquarters are abroad
shall be subject to register in the Central Bank of Brazil.
1º - The National Monetary Council shall set norms to concede the register which this article
refers to, pursuant to the following conditions:
a) reasonability of the installments;
b) criterion for the establishment of the useful life time of the good object of the lease
c) consistency between the good’s lease term and its useful life time;
d) relationship between international commercialization price and the total cost of the lease
e) establishment of a purchase option price;
f) other warranties dictated by national economic and financial policy.
2º - The establishment of conditioning criteria for the establishment of the purchase option price
is barred where the lessor is an entity headquartered abroad.
Art. 17º - The entry of goods that are the object of lease agreed with lessors headquartered
abroad into Brazilian territory shall not be confused with the temporary admission regime under
Decree-Law # 37, of November 18th 1966, and shall be subject to all legal norms governing
Art. 18º - The taxable amount, for the purpose of the Tax on Manufactured Products, on the
taxable event that takes place as of the shipping of imported goods to the lessee’s facilities shall
correspond to the wholesale price of on the market at the lessor’s headquarters.
1º - The exit of goods imported under tax exemption shall be exempted from the levy referred
to in the caption of the present article.
2º - Where the price of goods imported for the purpose of lease agreement is equal to or higher
than that which would be due by the lessee should he choose to import such goods directly, the
taxable amount referred to in the caption of the present article shall be the amount construed to
be the taxable amount for the collection of the Tax on Manufactured Products at the time of the
customs clearance of such goods.
Art. 19º - The purchase and sale of goods within the domestic market for the specific purpose to
lease by the purchaser the lessee domiciled abroad shall hereby be considered as exportation.
Art. 20º - All fiscal benefits awarded by law to encourage exports shall be assured to the seller
of the goods referred to under the previous article, subject to personal requirements to be
observed by the seller and any others demanded in events of direct or indirect exportation.
1º - The fiscal benefits referred to under this article shall be awarded as regards the amount,
denominated in domestic currency, of the irrevocable payment bond on installments under the
agreed lease agreement, the taxable amount being limited to the purchase and sale price.
2º - For the purposes of the precious paragraph, equivalence in domestic currency shall be
determined by the highest exchange rate in force on the date of the application of the fiscal
Art. 21º - The Minister of Finance may extend to lessees of domestically produced machinery,
devices and equipment the benefits under Decree-Law # 1,136, of December 7th 1970.
Art. 22º - Legal entities operating with the lease agreement of goods and that meet the present
Law’s dispositions within one hundred and eighty (180) days from its entry into force shall have
their operations governed by this legal instrument, as long as their agreements are appropriately
adjusted by means of amendments.
Art. 23º - The National Monetary Council is hereby authorized to:
a) pass norms aiming to establish regulatory mechanisms for the activities referred to
hereunder, and may exclude modes from the treatment set forth hereunder;
b) list, restrictively, goods that cannot be the object of lease agreement, in accordance of the
Country’s economic and financial policy.
Art. 24º - This law shall enter into force on the date of its publication and shall revoke all
Mário Henrique Simonsen
João Paulo dos Reis Velloso
(Official Gazette Sep./13/’74)
Law # 7,132, of October 26th 1983
Amends Law # 6,099, of December 12th 1974, “on the tax treatment of lease agreements and
other measures”, and Decree-Law # 1,811, of October 27th 1980
The President of Brazil:
Let it be known that the National Congress has decreed and I sanction this Law:
Art. 1º - Law # 6,099, of September 12th 1974, shall be thus amended:
I - may the sole paragraph of article one read thus:
“Art. 1- .............................................................
Sole Paragraph- Lease agreement is deemed to be an operation carried out between a legal
entity, as lessor, and a legal entity, and individuals as lessee, for the purpose of leasing
goods acquired from third parties by the lessor, for use by the lessee and pursuant to the
II - may article 5 include a sole paragraph:
“Art. 5- .............................................................
Sole paragraph - The National Monetary Council shall be entitled to establish, as regards
operations it may define, that installments be stipulated for periods in excess of those set
forth under item “b” of this article.”;
III - may articles 9, 16 and 17, the caption of article 18 and item “a” of article 23 read thus:
“Art. 9 - Lease agreements agreed with the seller of the good or legal entities connected
thereto, through any of the relationships indicated under article 2 hereof, may also be carried
out by financial institutions expressly authorized by the National Monetary Council, who shall
establish the conditions for the performance of the operations described under the present
Sole paragraph - In the events described under this article, the loss arising from the sale of
the goods shall not be deductible in calculating real profits.
Art. 16 - Lease agreements entered into with entities domiciled abroad shall be subject to
register with the Central Bank of Brazil.
1º - The National Monetary Council shall set norms governing the award of the register this
article refers to, pursuant to the following conditions:
a) reasonability of the installments and their structure;
b) criterion for the establishment of the useful life time of the good;
c) consistency between the good’s lease term and its useful life time;
d) relationship between the international price for the good and the total cost of the lease
e) purchase option clause or contract renewal clause;
f) other warranties dictated by national economic and financial policy.
2º - By previous assent by the Central Bank of Brazil, pursuant top norms the National
Monetary Council shall issue for this purpose, the goods object of the operations the present
article refers to may be let to lease societies domiciled in Brazil for the purpose of sub-lease.
3º - The norms applicable to lease agreements entered into with entities domiciled abroad
shall apply to sub-lease.
4º - In sub-lease agreements, affiliation or interdependence may exist between the entity
domiciled abroad and the sub-lessor lessee domiciled in Brazil.
5º - According to conditions it may set, the National Monetary Council may authorize the
register of agreements devoid of purchase option clauses, as well as establish minimum
terms for the agreement referred to under this article.
Art. 17 - The entry of goods that are the object of lease agreement agreed with lessors
domiciled abroad into Brazilian territory shall not be confused with the temporary admission
regime under Decree-Law # 37, of November 18th 1966, and shall be subject to all legal
norms governing importation.
Art. 18 - The taxable amount, for the purpose of the Tax on Manufactured Products, on the
taxable event that takes place as of the shipping of imported goods to the lessee’s facilities
shall correspond to the wholesale price of said good at the lessor’s domicile.
1º - .................................................................
2º - .................................................................
Art. 23 - ..............................................................
a) pass norms aiming to establish regulatory mechanisms for the activities referred to
hereunder, and may exclude modes from the treatment set forth hereunder and limit or forbid
its performance by certain classes of natural or legal entities;
Art. 2º - The current article 24 shall be renumbered as article 25, and the following shall de
construed as article 24:
“Art. 24 - Assignment of the lease agreement to entities domiciled abroad shall be submitted
by the contents of this law and shall depend on previous authorization by the Central Bank of
Brazil, pursuant to norms issued by the National Monetary Council.
Sole Paragraph - Pursuant to the contents of this article, credit rights arising from
installments due may be transferred exclusively and independently from assignment of the
Art. 3º - The caption of article 1 of Decree-Law # 1,811, of October 27th 1980, shall read as
“Art. 1º - The National Monetary Council may, for each operation type it may define, in regard
to the income tax aliquot levied at the source on the amount of transfers abroad, where they
arise from the lease agreement of capital goods agreed with entities domiciled abroad,
reduce such aliquots to zero or fully or partially reestablish them.”
Art. 4º - This Law shall enter into force on the date of its publication.
Art. 5º - All contrary dispositions are hereby revoked.
Brasília (DF), October 26th 1983; 162nd year of the Independence and 95th year of the
Antônio Delfim Netto
João Camilo Penna
(Official Gazette Oct./27/83)
RESOLUTION # 2,309, of Aug., 28th, ‘96
Disciplines and consolidates
norms relative to lease
THE CENTRAL BANK OF BRAZIL, pursuant to art. 9 of Law # 4,595.
of Dec. 12th, ‘64, states that the NATIONAL MONETARY COUNCIL, in the
course of a session held on Aug. 28th, ‘96, based upon the contents of Law #
6,099, of Sep. 12th, ‘94, with the amendments introduced by Law #7,132, of
Oct. 26th, ‘83.
Art. 1 - Has approved the attached Regulations, disciplining the mode
of operational lease, authorizes the entry into lease agreement with
individuals in general and consolidates norms relative to finance lease.
Art. 2 - The Central bank of Brazil is hereby authorized to take
measures and impose norms deemed required to the execution of the
Art. 3 - The present Ordinance shall enter into force on the date of its
Art. 4 - Ordinances # 980 of Dec. 13, 1984, # 1,452 of Jan. 15, 1988, #
1,474 of Mar. 29, 1988, # 1,681 of Jan 31, 1990, # 1,686 of Feb. 20, 1990 and
# 1,769 of Nov. 28, 1990, article 2 of Ordinance # 2,276 of Apr. 30, 1996,
Circulating Letters # 903, of Dec. 14, 1984, # 2,064 of Oct. 17, 1991 and
article 2 of Circulating Letter # 2,706 of Jul. 18, 1996 are hereby revoked.
Gustavo Jorge Labiossière Loyola
Of the Lease Practice Agreements
Art. 1 - Lease agreements with tax treatment pursuant to Law # 6,099
of Sep. 12, 1974, amended by Law #7,132 of Oct. 26, 1983, shall only be
performed by legal entities who have as primary corporate purpose the
rendering of lease agreements, by universal banks with lease portfolios and
by financial institutions who, pursuant to article 13 of the present Regulation,
are authorized to enter into lease agreements with the seller of the object or
with legal entities connected to or interdependent with same.
Sole Paragraph. The agreements addressed by the present article
may be of either the finance or operational leases.
Art. 2 - In order to perform the agreements addressed by the present
Regulation, lease societies and financial institutions mentioned on the
previous article shall maintain a technical department duly structured and
overseen by one of its directors.
Sole Paragraph. Societies and institutions shall communicate the
Regional Office of the Central Bank of Brazil under whose jurisdiction they
may be the name of the Director responsible for the commercial lease area.
Of the Execution and Operation of Lease Societies
Art. 3 - The execution and operation of legal entities whose primary
corporate purpose is the performance of lease agreements, named lease
societies, shall be dependent on authorization by the Central Bank of Brazil.
Art. 4 - Lease societies shall be executed as corporations and shall be
subject, where appropriate, to the conditions set for the financial institutions
under law # 4,595 of Dec. 31, 1964, as well as subsequent legislation
pertaining to the National Financial System, and their corporate name shall
mandatorily include the expression “Arrendamento Mercantil”.
Sole Paragraph. The expression “Arrendamento Mercantil” as a part of
the corporate name is exclusive to the societies addressed by the present
Of the Modes of Arrendamento Mercantil - Leasing
Art. 5 - Finance lease is deemed the mode where:
I – lease payments and other payments set forth under the agreement,
due by the lessee, shall be normally sufficient for the lessor to recover the
cost of the goods let for the contractual period of time of the agreement and,
in addition, perceive a return on the invested funds;
II - maintenance, technical support and ancillary services expenses
related to the operability of the goods let shall be the lessee’s responsibility;
III - the price for exercising the purchase option shall be freely agreed,
and may be the let goods market worth.
Art. 6 Operating Lease shall be the mode in which: Composition
altered by the
I - lease payments to be made by the lessee include the cost of Ordinance #
the lease of the goods and services inherent to its placement, the 2,465 of
present worth of such payments not to exceed ninety percent 1998
(90%) of the cost of the goods;
II - the term of the contract is shorter than seventy five percent
(75%) of the economic life time of the goods;
III - the price for exercising the purchase option is the market
worth of the goods leased;
IV - Guaranteed Residual Value is not permitted.
1º - The agreements regarded by this article are exclusive to
universal banks with lease portfolios and leasing societies.
2º - To calculate the present value of the payments shall be
used the interest rate of the contract.
3º - Maintenance, technical support and services connection to
the operability of the goods let may be the lessor's or the lessee's
Of Lease Agreements
Art. 7 - Lease agreements shall be instrumentalized by private Composition
or public act containing, at least, the below indicated altered by the
specifications: Ordinance #
I - description of the goods which comprise the object of the 1999
agreement, with all features that may permit their perfect
II - the lease time limit;
III - the amount of the lease payments or a formula for the
calculation thereof, as well as the criterion for adjustment of
IV - the manner of settlement of lease payments at set intervals,
not to exceed 1 (one) semester, except for operations to the
benefit of rural activities, where payment may be set at intervals
not to exceed 1 (one) year;
V - the conditions for the lessee to exercise the right to choose
among renewal of the agreement, restitution of the goods or
purchase of the leased goods;
VI - the allowance to the lessee for purchase options to the
leased goods , establishing the price for exercising such right or
the criterion applicable to the establishment of the price;
VII - expenses and operating burdens, including technical
support, maintenance and ancillary services expenses relative to
the operability of the leased goods, admitted, in addition, as
regards finance lease:
a) the possibility of the lessee’s paying the guaranteed residual
value at any time in the course of the duration of the agreement,
such payment not to characterize the exercise of the purchase
b) adjustment of the price set for the purchase option and the
guaranteed residual value;
VIII - conditions for the eventual replacement of the leased
goods , including upon the occurrence of contingent events, for
others of the same nature, which better serve the lessee’s needs,
such replacement to be formalized by an amendment to the
IX - other responsibilities to be agreed arising from:
a) undue or improper use of the leased goods;
b) insurance coverage for risks on the leased goods;
c) damage done to third parties by the use of the leased goods;
d) burdens arising from defects of the leased goods;
X - the lessor’s ability to inspect the leased goods and demand
from the lessee the adoption of measures required to maintain
the integrity of the leased goods;
XI - the lessee’s obligations in the event of:
a) default, limited the fine to 2% (two per cent) of the value in
b) destruction, death or disappearance of the leased goods;
XII -the lessee’s ability to transfer to third parties in the country,
with the lessor’s prior and explicit assent, its rights and duties
arising from the agreement, with or without joint and several
Art. 8 - Agreements shall establish the following minimum lease
I - for finance leases:
a) 2 (two) years, counted from date of delivery of the leased goods to
the lessee, instrumentalized in a statement to the effect of acceptance and
receipt of goods, and the date of the last leasing payments , as regards goods
with useful life time equal to or shorter than 5 (five) years;
b) 3 (three) years, according to the term duration definition as set
above, for other goods;
II - for operational leases, 90 (ninety) days. altered by the
Art. 9 The establishment of exchange-rate related clause is February 20
allowed in the lease agreements whose acquisition has been 2004
made with funds arising from loans taken directly or indirectly
Art. 10 - Lease agreements shall be considered as a sale agreement if
the purchase option has been exercised prior to the respective term set
under art. 8 hereof.
Of Lease Agreements
Art. 11 -May be the object of lease domestically or foreign equipment
and real state acquired by the lessor entity for the lessee’s use, according his
Art. 12 - It is permitted lease agreements with individuals and
companies as lessees.
Art. 13 - Lease agreements with the seller of the lease goods or with
entities affiliated to or interdependent with same may only be agreed as
finance lease, with the application of the conditions set forth hereunder.
1. The operations addressed under the present article may only be
entered into with companies as lessees.
2. Multiples banks with investment, development and/or real state
credit portfolios, investment banks, development banks, savings banks and
real state credit societies may also perform the operations addressed under
the present article.
Art. 14 - The lessor entity may, in the events of return or recovery of
the goods let:
I - maintain the goods as fixed assets, for the maximum period of 2
II - sell or new lease agreement to third parties.
Sole paragraph. The contents of the present article shall also apply to
goods received as payment.
Art. 15 -Multiple banks with a lease portfolio and lease societies may
enter into lease agreements with entities domiciled abroad, with the single aim
of subsequently sub-lease such goods to domestic companies.
Sole Paragraph. Lease agreements addressed under the present
article shall be subject to register on the Central Bank of Brazil.
Art. 16 - Multiple banks with a lease portfolio and lease societies may
acquire, in the domestic marketplace, rights and duties arising from lease
agreements entered into with foreign entities with the single aim of
subsequently sub-lease such goods, as set forth under the above article.
Art. 17 - Sub-lease agreement are forbidden where direct or indirect
affiliation or interdependence exists between the lessor domiciled abroad and
the sub-lessee domiciled in Brazil, pursuant to art. 27 of the present
Art. 18 - Multiple Banks with a lease portfolio and lease societies shall
pass through to sub-lessees domiciled in Brazil, under finance lease
agreements, executed pursuant to the present Regulation, all costs, fees,
taxes, commissions and other expenses relative to the acquirement of the
goods leased as well as any other conditions set under the agreement
entered into with the foreign entities, accrued of compensation, including
compensation arising from the eventual acquirement of rights and duties
arising from agreements, and such expenses and burdens may accrue the
cost of the leased goods.
Of the Sources of Funds
Art. 19 - Leasing societies may employ in their activities, in addition to
own resources, those from:
I - loans made abroad;
II - loans and financing from domestic financial institutions, including
pass-through of foreign funds;
III - official financial institutions, destined for pass through to specific
IV - placement of public or private debentures and promissory notes
destined to the market;
V - assignment of lease agreements, as well as of the credit rights
arising there from;
VI - interbank deposits, pursuant to the regulations in force;
VII - other forms of collection of funds, as authorized by the Central
Bank of Brazil.
Art. 20 - Leasing societies and financial institutions authorized to
perform the operations addressed hereunder may take loans abroad, with the
I - funds to acquire goods for the purpose of lease;
II - acquirement of credit rights arising from lease agreements that
contain exchange rate adjustment clauses;
III - acquirement of lease agreements that contain exchange rate
adjustment clauses as per art. 22 of the present Regulation.
altered by the
Art. 21 - Leasing societies may obtain loans, credits, transfer of funds and Ordinance #
guarantees from colleagued or interdependent financial institutions, provided 2,595 of
the corresponding liens shall be the ones normally charged in similar February 25
operations performed with third parties. 1999
Art. 22 - Assignment and acquisition operations regarding lease
agreements in the domestic marketplace, with the exception of those
mentioned under art. 13 hereof, shall be restricted to multiple banks with a
lease portfolio and lease societies.
Sole paragraph. Assignment and acquisition of agreements referred to
under art. 13 of the present Regulation between institutions authorized to
perform such activities is permitted.
Art. 23 - Acquisition of lease agreements whose goods have been
acquired with funds arising from foreign loans or that contain exchange rate
adjustment clauses, as well as of the credit rights arising from same, may only
be performed with the employment of funds arising from loans obtained
Art. 24 - Lease societies may offer as collateral for loans taken in the
domestic or foreign markets, pledge of credits rights arising from lease
Art. 25 - The assignment of lease agreements, as well as of the credit
rights arising from same, to entities domiciled abroad shall depend on the
previous authorization of the Central Bank of Brazil.
Art. 26 - Multiple banks with investment or development portfolios,
investment banks and development banks may employ funds arising from
foreign loans taken pursuant to Ordinance # 63 of Aug. 21, 1967, in lease
agreements as addressed by art. 13 of the present Regulation.
1. Operations performed pursuant to the present article shall only be
entered into with legal entities as lessees.
2. The portion of foreign funds amortized by the settlement of
considerations may be applied to new lease agreements, to passthroughs to
customers, or to alternative applications as authorized for foreign funds
destined to passthroughs.
3. Observed the minimum terms set forth under art. 8, item I, of the
present Regulation, operations referred to under the present article may only
be performed at terms equal to or shorter than those of the final amortization
of the loan taken abroad, whose funds shall remain in Brazil pursuant to the
foreign repayment period admitted by the Central Bank of Brazil at the time of
the authorization of its entry.
Of Affiliation and Interdependence
Art. 27 - For the purposes of art, 2, Paragraph 1, of Law # 6,099 of
Sep. 12, 1974, and of the present Regulation, affiliated or interdependent
shall be the entity:
I - in whom the lessor entity has a direct or indirect stake equal to or in
excess of 10% (ten percent);
II - in whom the managers of the lessor entity, their spouses and
respective relatives up twice degree have, as a group or individually, directly
or indirectly, a stake equal to or in excess of 10% (ten percent);
III - in whom shareholders with a stake equal to or in excess of 10%
(ten percent) of the lessor entity have, directly or indirectly, a stake equal to or
in excess of 10% (ten percent);
IV - who has, directly or indirectly, a stake equal to or in excess of 10%
(ten percent) of the lessor entity;
V - whose managers, and their spouses and relatives up to twice
degree as a group or individually, directly or indirectly, a stake in the lessor
entity equal to or in excess of 10% (ten percent);
VI - whose partners, quotaholders or shareholders with a stake equal
to or in excess of 10% (ten percent) also have, directly or indirectly, a stake in
the lessor entity equal to or in excess of 10% (ten percent);
VII - whose managers be, partially or in their entirety, the same ones as
for the lessor entity.
Art. 28 - Lease societies and the financial institutions referred to under
art. 13 of the present Regulation are barred from entering into lease
I - affiliated or interdependent natural and legal entities;
II - managers and their spouses and relatives up to twice degree;
III - the manufacturer of the goods let.
Art. 29 - Lease societies shall not enter into loan agreements with non-
financial natural and legal entities.
Art. 30 - The Central Bank of Brazil may set criteria for the distribution of
considerations throughout the term of the agreement, in the light of appropriate
compliance with the minimum terms set forth under art. 8 of the present Regulation.
Art. 31 - Lease societies’ available funds, where not kept in currency, may be
freely invested in the financial market, pursuant to the limits and other regulatory
norms relative to each type of financial investment.
Art. 32 - The norms in force for financial institutions in general shall apply to
lease societies, as regards the Central Bank of Brazil’s exclusive jurisdiction for the
award of authorizations contemplated under item X of art. 10 of Law # 4,595 of Dec.
31, 1964, as well as for the confirmation in any position in the management of said
societies, including consultative, fiscal or similar bodies, pursuant to said Law and
Art. 33 - Agreements performed that in disagreement to comply with the
contents of the present Regulation shall not be construed to be lease agreement.
(Official Gazette of Aug. 29, 1996)