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TRF‐3 Determines The Filing Of An Individual Limited Liability Company ‐ Eireli Composed Of A Legal Entity

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In an unprecedented decision, the court determined the filing of an EIRELI (Individual Limited Liability Company) having a legal entity as holder. The law firm Gaiofato e Tuma Advogados Associados obtained an unprecedented decision in the State of São Paulo from the 3rd Circuit of the Regional Federal Court (TRF), which, in a writ of mandamus, determined that the Commercial Registry of the State of São Paulo proceeds with the filing of the transformation of a limited company (which until then had a sole proprietor) to an EIRELI, having as its holder the legal entity partner remaining from the limited company.

According to attorneys Thiago Rogério de Jesus Rodrigues and Fabiano Lopes de Moraes, of the Corporate team of Gaiofato e Tuma, “this decision, the first we know of in the state of São Paulo, consolidates the understanding that it is not up to the Department of Business Registration and Integration (DREI) to prevent, through a normative ruling, the exercise of the ownership of an EIRELI by a legal entity.” The attorneys explain that “Law 12,441/2011 brought an innovation acclaimed by entrepreneurs: the possibility of a company being formed by a single person with limited liability by its holder, as the traditional model of limited liability company compelled the entrepreneur to form a company so that it could enjoy property autonomy”.

Much has been discussed until the approval of the Law that inserted article 980‐A into the Civil Code, and the possibility of limiting or not to individuals the adoption of the corporate type is the main point of the discussion.

“The original article of the Law contained the term “natural”, limiting the formation of an EIRELI by a natural person, with the obvious intention to limit the formation of an individual limited liability company based on the political pretext that there would be an upsurge of transformation of limited companies into individual limited liability companies, incorporated as a holding company in the form of wholly‐owned subsidiaries as set out in
the corporation law”, said the attorneys.

After much discussion, the text of the law was approved with the deletion of the word “natural”, decision that supposedly extended the right to establish an EIRELI to any person, whether natural or legal. However, a rule published in 2011 by the National Trade Registration Department (DNRC) and reissued by DREI (Normative Ruling
No. 10, Exhibit V, ‐ Section 1.2.11), prohibits the creation of an EIRELI by a legal entity without any legal support.

Therefore, the decision that determines the immediate filing and registration of the petitioner’s contractual alterations to the EIRELI corporate model is unprecedented and gives rise to precedents. According to the judge’s decision, “based on the analysis of the abovementioned legal provisions we conclude that, unlike Normative Ruling No. 117/2011, Law No. 12441/2001, which establishes the figure of the Individual Limited Liability Company – EIRELI, brought no distinction between individual and legal entity regarding the corporate model, and the only restriction is that the individual acts only in one company of this kind.” The judge concluded that “remarkably, the normative ruling only regulates the ordinary law hierarchically superior, and cannot improve the law system and establish restrictions not set forth by law, under penalty of violating the constitutional principle of
legality.”

Gaiofato e Galvão

Gaiofato e Galvão