BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
of justice, as they deal with financial and tax data. Strictly speaking, it is not possible to require orders against third parties, unless fraud in the property regime has previously been proven. No Trusts Under Brazilian Law As for a trust, which is a company created for the specific purpose of asset management and protection, there is a regulatory gap in Brazil, as there is no specific provision in this regard, either as a legal transaction or tax regulation. Bill of Law No 4.758/2020, which provides for an institute similar to a trust (called a “contract of trust”), is still awaiting processing by the Bra - zilian Senate, with no clear indication of when it will be finalised. Bill of Law No 145/2022, which deals with the law applicable to the trust, its effectiveness and its tax treatment in the coun - try, is also pending in the Brazilian Congress with no certainty of when this will be finalised. Bill of Law No 14754, approved in December 2023 by the Brazilian Congress, came into force as of January 2024. This bill establishes, among other things, the taxation of offshore companies and trusts based on 15% of income earned from 2024 onwards, even if the investment remains abroad. The bill provides: “Income and capital gains relating to the assets and rights of the trust will be considered obtained by the holder on the date of the event (creation of the trust, distribu - tion of assets or death of the owner) and subject to income tax. Modification of ownership of the trust’s assets will be considered a donation, if [this] occurred during the owner’s lifetime, or an inheritance, after their death; in either case, the tax on transmission causa mortis and donation of any assets or rights (ITCMD) is a state tax.” It is important to mention that the tax provided for by Bill of Law No 14754, issued in December
2023, also applies to exclusive funds, equating them to the non-exclusive investment funds. Therefore, tax is now levied beyond the time of redemption of the amount invested, unlike it was before 2024. 2.4 Spousal Maintenance Spouses or partners can ask each other for the maintenance they need to live in a manner com - patible with their social status, so that the ben - efiting party can reorganise or find themselves a place in the labour market and seek other means of supporting themselves. In general, it is an exceptional obligation – although if one comes to need maintenance, the other will be obliged to provide this through a pension to be fixed by a judge, for a certain period, in most cases. This is determined, in general, on a transitory basis, based on the binomial represented by the financial capacity of the maintenance provider and the needs of the maintenance beneficiary, according to criteria of proportionality and rea - sonableness. With the dissolution of the relationship, the party that feels in need can request the arbitration of provisional maintenance, proving its need, while awaiting the final decision regarding the amount and period to be defined for the payment of the maintenance. The so-called transitional ali - mony can also remain in force until the sharing of assets is effective, when a spouse/partner in need can live off the income and/or fruits of these assets. Long-Term Maintenance However, there is also the possibility that the instalment could be for life, depending on the circumstances proven on a case-by-case basis, which will also be analysed for the definition of the value, which is subject to revision, depend - ing on the change in needs of those who receive
82
CHAMBERS.COM
Powered by FlippingBook