BRAZIL Law and Practice Contributed by: Renata Iezzi, Nicole René Gomes e Cunha and Marcela Correa, Basch & Rameh
2.3.8 Requirements for Documents Concerning Registration General Requirements In order to be admissible in Brazilian courts and gov - ernmental agencies, any agreement that is not written in Portuguese or that is executed abroad must be: • notarised and, if executed outside Brazil, apostilled (if signed in a state that is a signatory to the Hague Convention Abolishing the Requirement of Legali - sation for Foreign Public Documents); • translated into Portuguese by a public translator in Brazil (called “sworn” translations); and • registered with a public registry. A document that is signed in a jurisdiction that does not adhere to the Hague Convention must be legalised by a Brazilian Consulate abroad. To simplify and expedite RAB filings, most leases, bills of sale, security assignments (including notices and acknowledgements of assignments) and subordina - tion agreements are signed in Brazil by local attorneys who are authorised to execute transaction documents under powers of attorney. The powers of attorney must comply with the formalities described above. RAB Requirements The foregoing are general rules for admissibility. The RAB recently abolished its longstanding requirement that registration documents must be signed by two witnesses. In practice, many documents are still wit - nessed for other reasons. The RAB accepts documents that are digitally signed, provided that these signatures comply with the techni - cal standards of ICP-Brasil (a cryptographic platform developed by the Brazilian Institute of Information Technology). Documents digitally signed and com - pliant have the same authenticity value as notarised documents (the digital user must obtain a digital certif - icate embedded in a USB token issued by ICP-Brasil). The implementation of digital signatures is not recent, but its usage increased throughout the pandemic. Documents that have not been signed with signatures that are compliant with the ICP-Brasil can be regis - tered with the RAB but must undergo an authentica -
tion process that adds unnecessary cost and delay to transactions. The RAB filing system for commercial aircraft is also electronic, allowing parties to file aircraft documents for registration remotely. Other Brazilian Registration Requirements In addition to the RAB, there is another relevant type of registry, called a Registry of Deeds and Documents (RTD). Unlike the RAB, which is a singular specialised aircraft register, many RTDs in Brazil deal with docu - ments of any nature. There is ongoing debate in Bra - zil concerning the need to register a RAB-registered document with an RTD. The majority view seems to accept that RAB registration is sufficient. Not all aviation-related documents are registered with the RAB. Bills of sale, leases, local law mortgages and related amendments must be registered. Lease security assignments, notices and acknowledgements of assignment may also be registered. Documents not registered with the RAB should be registered with an RTD in order to be enforceable in Brazil. 2.4 Lessor’s Liabilities 2.4.1 Tax Requirements for a Foreign Lessor See 2.2.2 Tax and Withholding Gross-Up Provisions regarding the withholding tax applicable since 2022. The Brazilian lessee is responsible for withholding and paying such tax when remitting the rent payments. The withholding is usually accomplished automatically by the bank handling the wire transfer. 2.4.2 Effects of Leasing on the Residence of a Foreign Lessor Foreign lessors are not deemed tax residents in Brazil, although they must obtain Brazilian corporate identifi - cation numbers to enable the Brazilian lessee to remit rent abroad (see 2.1.4 Exchange Controls ). Applica - ble Brazilian taxes, if any, would be imposed on the Brazilian lessee. 2.4.3 Engine Maintenance and Operations A lessor would not be liable in respect of aircraft or engine maintenance and operations if the lease was registered as described in 2.3.4 Registration of Leas- es With the Domestic Aircraft Registry .
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