ME Ordinance No. 13/20, issued on February 13, made a series of amendments to MF Ordinance No. 479/00, which deals with the accreditation of financial institutions to provide federal revenue collection services.
One of them is the change in the conditions for accreditation of legal entities to offer such services. The requirement of registration with the Central Bank of Brazil (Bacen) to operate as a commercial department has been replaced by that of a bank reserve account or settlement account at Bacen.
From a regulatory point of view, fintechs would then be formally authorized to request technical registration from the Brazilian Federal Revenue Service (RFB) to provide such services and offer them to their clients.
However, doubts may arise as to the need for the RFB to issue a specific regulatory act to regulate the changes, especially since MF Ordinance No. 479/00, as amended, delegates to the RFB the competence to accredit institutions to provide federal revenue collection services.
Based on a comparative analysis between the prior text and the amended text of MF Ordinance No. 479/00, one of the conditions necessary for institutions to be accredited by the RFB to provide the service is changed, but not a "new" delegation of powers to the RFB, which would require the regulation of a specific procedure for accreditation and registration of new institutions that meet the current requirements of the ordinance.
Thus, it is understood that the delegation of regulatory powers to the RFB has already been exercised through SRF Ordinance No. 2.609/01, which governs the activities of the collection network. This same act establishes in articles 3 to 6 the procedure for accrediting and registering financial institutions to provide federal revenue collection services, becoming applicable also to fintechs that wish to do so.
Institutions that meet the conditions of MF Ordinance No. 479/00 and wish to qualify as collection agents must submit the following documents:
- bylaws of the financial institution
- minutes of the general meeting that elected the board of directors
- minutes of the board of directors that elected the officers
- ratification by Bacen of the election of the officers
According to article 5 of SRF Ordinance No. 2.609/01, after the accreditation and before the beginning of the services, the institution must:
- sign an administrative contract for the provision of services with the Federal Government.
- appoint a legal representative.
- report to the unit of the RFB that oversees the matrix of the information regarding the agencies that will do the collection (e.g., name, address, CNPJ).
From an isolated reading of the last item, it would be possible to argue that there is an incompatibility between SRF Ordinance No. 2.609/01 and the way fintechs operate, since these companies do not have physical collection agencies and do not follow the patterns of traditional banks, to which, no doubt, the regulation was addressed when it was promulgated.
Although it is desirable to change the provision to adapt it to the operational model of fintechs and to the new reality of federal revenue collection by such institutions due to the promulgation of ME Ordinance No. 13/20, we believe that the references contained in SRF Ordinance No. 2.609/01 to agencies should not be interpreted as evidence of incompatibility between the standards under review.