BRAZIL Law and Practice Contributed by: Renata Iezzi, Nicole René Gomes e Cunha and Marcela Correa, Basch & Rameh
erned by New York or English law might not effectively transfer title; see 1.2.1 Transferring Title . 1.2.3 Enforceability Against Domestic Parties See 1.2.1 Transferring Title . 1.2.4 Registration, Filing and/or Consent From Government Entities Depending on the gross revenues of the seller and buyer, the approval of the Brazilian antitrust authority might be required; see 1.2.1 Transferring Title . 1.2.5 Taxes/Duties Payable Upon Execution of a Bill of Sale No taxes or duties are payable for the execution and registering of bills of sale. Nominal translation costs will be due. Note that most registration services have been made free of charge by the National Agency of Civil Aviation (ANAC) as part of an ongoing federal programme to reduce bureaucracy. There are no express limitations based on the lease type. Dry, wet, operating and finance leases are all permitted in Brazil, provided they abide by importa - tion, registration, foreign exchange and other appli - cable Brazilian law regulations. There are restrictions on operators in Brazil, so cross-border wet leases are rare. Due mainly to tax considerations, most commercial aircraft are on operating leases. Local airlines occa - sionally enter into financial leases, and some spare engine finance is structured through mortgages. 2.1.2 Application of Foreign Laws Leases governed by foreign law are recognised and enforced in Brazil, provided they do not violate Bra - zilian sovereignty, good customs or public morality. Typically, aircraft finance documents do not violate these criteria, with the exception of: 2. Aircraft and Engine Leasing 2.1 Overview 2.1.1 Non-Permissible Leases
• self-help remedies; and • unilateral option provisions in certain cases (eg, provisions subject to the sole discretion of the les - sor). 2.1.3 Restrictions Concerning Payments in US Dollars There are no material restrictions on lessees making rent payments to foreign lessors, but there are foreign currency exchange controls in certain types of trans - actions (see 2.1.4 Exchange Controls ). 2.1.4 Exchange Controls Brazil continues to be subject to foreign exchange controls. For decades, lessees have been required to register the terms of all leases with the Brazilian Cen - tral Bank, except for leases with terms of less than 360 days. In early 2023, the Central Bank eliminated the requirement for the registration of operating leases. Central Bank registrations are still required for finance leases and other financial acquisition transactions (eg, mortgage financing). The Central Bank registration is commonly referred to as an “ROF”. ROFs include the amount the debtor may remit and the party to whom the remittances may be made. ROFs approve regularly scheduled payments due under the finance lease or loan agreement. Irregular payments such as default interest or damages must be approved by the Central Bank on an ad hoc basis before remittance. Holders of rights over aircraft – eg, owners and payees under all leases (including operating leases) or loan agreements (including the current or future holders of registered security interests) – are obliged to obtain taxpayer registration numbers from the Brazilian Revenue Service (SRF), even though lessors may not be subject to Brazilian tax. Such numbers are called CNPJs. Obtaining a CNPJ does not create tax liability per se. Since 2016, the process of obtaining a CNPJ requires the registrant to:
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