Since May 2nd, 2017, with the entry in force of Normative Instruction
NI DREI No. 38 / 2017, including its Annex V, i.e., the new Registration Manual of
Limited-Liability Sole Proprietorship – EIRELI, the Department of
Commercial Registry and Integration ("DREI") adopted the position
that a legal entity may incorporate EIRELI.
The new Manual, in its item 1.2, henceforth expressly sets forth
that the “EIRELI may be
incorporated both by Brazilian or foreign individuals or legal entities”.
The DREI is the body that in 2013 replaced
the National Department of Commercial Registry ("DNRC"), assuming all
its functions, including the establishment of rules and guidelines for filing
of corporate documents in the Public Commercial Registry of Companies and
This is an expected alteration of the previous position adopted by the
former DNRC (NI DRNC No. 117 / 2011) and subsequently reiterated by the DREI (through
NI DREI No. 10 / 133), which interpreted Article
980-A of the Civil Code in the sense that only individuals could be the
owners of a EIRELI. Such interpretation differed from the doctrine and case
law, which understood that there was no limitation for the owner of an EIRELI
to be an individual or legal entity.
Thus, as of May, the already incorporated Limited Liability Companies
(LTDAs), whose ownership structure is composed of legal entities, may be
reduced to a single quotaholder legal entity (either Brazilian or foreign)
through concentration of quotas, and consequently transformed into an EIRELI.
Such alteration represents a new alternative for foreign companies that
invest in Brazil, since, in practice, means a new alternative that will reflect
in cost-savings and reduction of red-tape procedures in the incorporation and
maintenance of the their subsidiaries in Brazil.
It is worth noting that the EIRELI corresponds to a corporate type of
limited liability that is subject to the same rules of a Limited Liability
Company (LTDA), whenever applicable.
Moreover, it is of utmost importance the proviso that since the moment
of its incorporation, the EIRELI shall always keep a capital stock equal or
superior to 100 (one hundred) times the highest minimum wage in force in Brazil
(on the date of the filing).
In this sense, it should be noted that the current minimum wage in
Brazil is R$ 937.00, hence, currently, the minimum capital stock for the incorporation
or transformation of a EIRELI is R$ 93,700.00, fully paid-up.
Nevertheless, in its items 1.2.4 and 1.2.7c., the new
Manual lays down that it is unnecessary to update of the capital stock, by
alteration, and/or decision of the holder, when there is an alteration in the
value set by the Federal Government. However, should there be any other
amendment of data; the capital stock shall be updated.
At last, it also worth highlight that the EIRELI’s capital stock must
also be always fully and duly paid-up, either in the incorporation or in future
capital stock increases.