The previous publication of the financial statements is a condition for the filing of minutes of quotaholders' meetings approving them.
On March 25, 2015, the Board of Trade of the State of São Paulo ("JUCESP") published Resolution No. 02/2015, which resulted in JUCESP Statement No. 41, setting forth that the filing of minutes of quotaholders' meetings of "large" companies or cooperatives for the approval of their financial statements will only be granted upon evidence of prior publication of the financial statements in the State Official Gazette and in a major newspaper.
Pursuant to article 3 of Law No. 11,638/2007, to be considered "large", the company or group of companies under the same control must have, in their previous fiscal year:
i. Total assets exceeding R$ 240,000,000; or
ii. Annual gross revenues R$ 300,000,000.
The presentation of the publication will be waived by JUCESP if the company presents a declaration (in the body of the minutes or in a separate document) attesting that it is not considered "large" (either solely or together with other companies under the same control), duly executed by the administrator and the accountant in charge.
The debate regarding the need for this publication came up as a result of Law No. 11,638/2007, which sets forth that the provisions of Law No. 6,404/1976 (Corporations Law) concerning bookkeeping, financial statements' drawing up and the requirement for independent audit by an auditor registered with the Securities and Exchange Commission (Comissão de Valores Mobiliários), are applicable to all "large" companies, even if not incorporated as a corporation.
JUCESP's present positioning is based on a decision dated as of March 8, 2010, by the 25th Federal Court of the Judiciary Section of São Paulo, under civil action No. 2008.61.00.030305-7, filed by the Brazilian Association of Official Presses against the Federal Government. The request was considered by the court to have grounds and resulted in the nullity of item 7 of the Ordinance No. 099/2008 issued by the extinct DNRC, which set forth that the publication was an option for "large" companies. It is worth noting that such court decision is still subject to reversal.
Other boards of trade had already stated the need for publication of "large" companies' financial statements, such as the Board of Trade of the State of Minas Gerais (JUCEMG), that published Administrative Instruction No. 03 on May 14, 2010, as well as the Board of Trade of the State of Rio de Janeiro (JUCERJA), pursuant the Resolution No. 53 and the Statement No. 39 of November 30,2011.
The matter is controversial, since Law 11,638/2007 leads to double interpretation, as it does not make express reference to the obligation of publication. Those who do not agree with the positioning of the boards of trade can file a writ of mandamus to try to ensure the registration of the minutes for the accounts approval, with possible chances of success.
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