On November 25, 2021, the Superintendency of Supervision of Securitization (SSE) of the Brazilian Securities Commission (CVM) released Circular 02/2021-CVM/SSE, with the objective of presenting the position of that technical area that it is not possible for real estate investment funds (fundos de investimento imobiliários – FIIs) to invest in silent partnerships (sociedades em conta de participação – SCPs) (“Circular 02/2021”).
In the Circular, the SSE mentions receiving queries from market participants regarding the possibility of SCPs being considered “companies” for the purpose of satisfying Art. 45, III, of CVM Instruction 472/2008 (according to which FIIs can invest in “shares or quotas of companies whose sole purpose fits under the permitted activities of FIIs”).
With respect to these queries from market participants, the SSE consulted the CVM Legal Department (PFE) and determined that:
(i) SCPs are not personified companies, instead corresponding to contractual arrangements between the silent and ostensive partners;
(ii) the activities included in the business purpose of SCPs are exercised solely by the ostensive partner, in their name and under their exclusive responsibility, with the other partners only participating in the corresponding results (Arts. 991 to 996 of the Civil Code);
(iii) SCPs do not have separate equity or the right of judicial representation, as plaintiff or defendant;
(iv) there is no mechanism for liquidation of SCPs; in case of bankruptcy of the ostensive partner, the silent partner(s) become unsecured creditor(s) of the bankruptcy estate; and
(v) in judging Special Appeal 168028/SP, the Superior Court of Justice (STJ, the highest court for non-constitutional matters) held that only the ostensive partner assumes obligations to third parties, since the SCP has no legal personality.
Based on these considerations, the SSE expressed the position that it is not possible to classify SCPs under Art. 45, III, of CVM Instruction CVM 472/2008, since they do not issue “shares or quotas of companies’”.
More information, as well as the full text of Circular 02/2021, can be found at the website of the CVM (www.gov.br/cvm).
