To analyze the main characteristics that configure the formation of a de facto economic group, it is important to make a brief analysis of the formation of a legal economic group.
The formation of an economic group by law is a common practice among companies in the current market, which is duly provided for in Law No. company social.
In accordance with current legislation, more specifically in article 265 and its paragraphs of the Corporate Law, there is an economic group configuration when controlling companies and subsidiaries are obligated to each other, through common resources and efforts to achieve their respective objectives, or participate in common activities or undertakings.
In other words, the formation of an economic group of law is characterized by the communion of interests, similarity in the management of the companies, economic ends and profit maximization.
On the other hand, the economic group in fact is the one that could perfectly be framed in the concept of economic group by law, provided for in the Corporate Law and in the consolidated jurisprudence of the Courts, however it does not.
In addition to the group of partners or shareholders in common between the companies, the jurisprudence of the Superior Courts and the Administrative Council of Tax Appeals (CARF) has understood a set of elements that can lead to the formation of the de facto economic group. They are the main ones:
i) Identity of management members (same administrators or directors); ii) Identity of the head office address or shared administrative structure; iii) Identity in the company that provides accounting services (same accountant); iv) Joint attorneys to exercise management powers, mainly access to bank transactions; v) Mutuals between companies in a way that is foreign to market conditions; vi) Collaborators in common; vii) Payments made by one company in favor of another; viii) Similarity in telephone numbers.
The greatest risk in forming de facto groups between companies is the responsibilities that can be assigned from one company to another, especially in the social security, labor and tax spheres.
Therefore, relying on the support of experienced professionals who are used to working in corporate reorganization of companies is essential for the success of your company in the search for greater legal certainty.
Source: Liège Fernandes Vargas, attorney at Cesar Peres Dulac Müller.