*Per Matheus Marques Borges
It is true that the feeling of the business community, when the publication of a new legal diploma is imminent in order to regulate a certain activity, naturally turns to bureaucratic obstacles capable of slowing down and preventing the seal of business. The fate is aggravated when the object of regulation concerns an ecosystem as disruptive, agile and volatile as that of startups.
In this area, from the perspective of general legislation, regulation, especially when it concerns the private sphere, does not tend to be advantageous from the point of view of entrepreneurship. However, contradicting this rudiment, Complementary Law No. 182/2021 appears, which aimed to reduce bureaucracy and move the State from a position of leading role in the management of negotiating fronts in that environment, to a position of promoting development.
The aforementioned ordinance brought a series of proposals that effectively aimed at improving the business environment in the country, including the institutionalization of the angel investment, the regulatory sandbox and the accelerating investment of companies, as well as a series of definitions that, until then, it was based exclusively on doctrinal and jurisprudential discernment.
Among the definitions brought up, the cognition of the semantics of the startup business, which had its stereotype based exclusively on its own self-declaration, and, as of the new ordering, the requirements became exhaustive. In this bias, from the effectiveness of the aforementioned legislation, for companies to benefit from this name, they must have had gross revenue of up to R$ 16 million in the previous fiscal year and have a CNPJ of up to ten years.
Possibly, there are those who say that the inclusion of such requirements has the effect of narrowing down and providing for the exclusion of certain companies, with regard to the aforementioned clothing. The truth is that the requirements are generic, with great amplitude, and their institution is effectively imperative, since the legislation brings benefits to that core, so that, if they were not foreseen, any company, regardless of its size or revenue, could thus enjoy it. In addition, endorsing the legal security front, the legislation was also right to ratify the need to limit the liability of the angel investor, who will not be able to answer for business debts, nor, at least ordinarily, be the north of possible disregard of the company's legal personality. Positivated, leaving crystal clear, investment institutes such as the loan agreement convertible into equity interest.
Although the latter were already massively used in the routine of the environment, and were provided for in other legislation, such as the removal of disregard for the legal personality, which was already provided for in the Economic Freedom Law, they were reaffirmed with the expectation of being in definitive relaxation – above all, in the labor jurisdiction, ignoring the aforementioned institute of disregard. In addition, it ratified the special regime called Inova Simples, which, probably for budgetary reasons, has not yet been launched in the scope of the REDESIM portal. In addition to reducing bureaucracy in certain procedures, the purpose is to grant startups differentiated treatment in order to promote formalization and consolidation in the market.
In the same scenario, with a focus on reducing bureaucracy, the old desire to bring as a possibility to Corporations the digital management of the books required by Law 6404/76 emerged, at this first moment still limited to the range of companies with revenues of up to R$78 million . Also, for this same type of business, but with sales of up to R$500 million, the possibility for the Brazilian Securities Commission to make the rules for public offerings more flexible, with the flexibility of the rules for registration, provision of information and others. As of now, there is great expectation of proactive action on the part of the Commission in this regard.
Distinct from this euphoria are the vetoes in the provisions that provided for the reduction of rates previously provided for in the original text, with the use of portfolio logic for investments, used in funds, which enables tax offsets by individuals, remaining as a beneficial point from a tax point of view. when there is investment in more than one startup business, having as a measure of tax collection the effectively net result earned by the plurality of investments in the medium.
In this same vein, the advantages incurred by companies, usually large ones, which, as they have certain tax benefits, have as counterpart investments in percentages of revenue in research and development and, now, enjoy the prerogative of channeling part of this investment in Funds. Investments in Equities that invest in startups. Thus, the emergence of a strong expectation of unlocking large capital is inevitable, especially in the corporate venture capital modality for this reason.
It is still relevant to highlight the institutionalization of the instrument of the “Regulatory Sandbox” – or “experimental regulatory environment” – which refers to the idea of creating “sandboxes” to isolate innovative models from “traditional regulation”, enabling the creation of rules and special conditions simplified so that participating companies can receive temporary authorization from bodies or entities with sectorial regulatory competence, in order to develop innovative business models and test experimental techniques and technologies through the facilitated procedure. In other words, there is the possibility for companies to carry out experiments in a regulated and controlled environment for a specific public. More than that, there is the possibility of bodies jointly carrying out sandboxes or, for example, BACEN joining forces with SUSEP and CVM, entities that, by their very essence, have an extensive regulatory role, with the scope to regulate sandboxes for fintechs.
Although valid, there are laws that definitely do not apply or, even if they are in force, they are simply not applied in practice. A contradiction in itself, since coupled with them are mandatory and binding commands. An unequivocal fact is that regulations such as Complementary Law No. 182/2021, which introduced the Legal Framework for Startups, should bring excellent benefits to the practice of Business Law, as they invigorate and encourage the startup market. Here remains the educational and informational challenge, in order to disseminate and translate the guidelines and ideas of the regulation to the entire corporate ecosystem.
*Matheus Marques Borges is the Legal Coordinator of NTT DATA Business Solutions. He specializes in Tax Law and Business Law.
Notice: The opinion presented in this article is the responsibility of its author and not of ABES - Brazilian Association of Software Companies
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