O ágio e a Lei 12.793: a independência entre as partes e o valor justo dos ativos

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Lukic, Melina Rocha
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This paper analyzes three major changes to goodwill in Brazilian law due to Brazilian Federal Law nº 12,973, 2014. This work studies, in particular: (i) the change in accounting of goodwill; (ii) the requirement for preparation of an appraisal for validity of goodwill for future profitability; and (iii) the need for 'non-dependence' between the parties to the transaction. To this end, this study presents a brief historical analysis of goodwill in Brazil, focusing on the concepts, criteria, and requirements for this institution in reference to Brazilian tax law and accounting sciences. This paper concludes that changes in accounting for goodwill implemented by Law No. 12,973, 2014, tend to decrease the value of goodwill in mergers and acquisitions and corporate restructuring operations, discouraging the conduct of these operations. Moreover, by requiring an appraisal report the new law ensures greater legal certainty to taxpayers, despite making the operations more costly. Finally, regarding the obligation of 'non-dependency' between the parties involved in any transaction, it is understood that this rule extinguishes the goodwill arising from transactions between companies within the same group or between related parties. Given the importance of the changes brought by Law No. 12,973, 2014, this paper recommends that the doctrine and jurisprudence deepen the studies on the subject.

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