Tax | Investment in Companies: Convertible Loan Agreement

The Convertible Loan Agreement (to converse a loan into equity) is widely used to instrumentalize investment in companies, mainly startups.

It is necessary to pay attention to two points: 

1. Change in corporate form. Generally, companies are constituted in the form of limited liability companies, as this form brings lower administration costs and time to comply with compliance. 

However, in the case of the convertible loan into equity, if the investor decides to enter the company effectively, it is advisable that the company be transformed into a corporation.  

The reason is because the premium for the sale of the shares by the company being invested is not taxed only if the company has the form of a corporation. If it remains as a limited liability, there is a 34% tax on the amount invested. Imagine you entering a company with an investment of $ 10 million, and, at the entrance, already having to leave approximately $3.4 million to the government in taxes. 

2. Dividends. Dividends are exempt from taxes. In a limited liability company, it is possible to distribute dividends unrelated to the shares. For example, someone who has 10% of the shares can keep 50% of the profits, if it is agreed among the partners. 

In the corporation, this disproportionate distribution of profits cannot be made. The alternative is to create two classes of shares, and distribute them in the best way to represent the differences in the distribution of dividends and voting power in the company.

We emphasize that there may be changes in relation to the taxation of dividends if the Brazilian tax reform is approved. The rule may differentiate taxation by company size or by type. 

Therefore, it is very important for the tax and corporate areas to work together to seek the best tax efficiency.


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