By Moema Giovanella

The result of extensive debate by the Securitization Superintendence – SSE of the Securities and Exchange Commission – CVM with the market after the first disclosure on the subject, Circular Letter CVM/SSE 4/2023 (OC 4/23), together with Circular Letter CVM/SSE 6/2023 (OC 6/23), published on 07/05/2023, aims to publicize the SSE's interpretations regarding the possibility of classifying Receivables Tokens – TR as securities.

In this sense, the SSE itself emphasizes that OC 6/23 is merely a guideline, and that the CVM does not regulate the matter; according to the CVM's Superintendent of Securitization Supervision, Bruno Gomes, “Throughout 2022 and 2023, the SSE received inquiries and carried out supervision actions involving different types of tokens, including TR, which motivated the preparation of OC 4/23. The inquiries received demonstrated that there were doubts among market participants about the characterization of certain investments offered as securities, and our objective with the circular letters is to provide the necessary clarifications”.

Based on Guidance Opinion 40 – PO 40, in which CVM consolidated its understanding on the application of securities regulation to cryptoassets, OC 6/23 highlights the possibility of securitization via Receivables Certificate and other securitization securities and bonds, brought by Law 14,430/22, with investment offerors being responsible for assessing the full or partial adherence of their offers to the guidelines of OC 6/23 or PO 40.

According to the SSE, tokenization is a process of digitally representing an asset or the ownership of an asset, facilitating its distribution to investors. Therefore, in public offerings of a token that represents a collective investment contract in receivables or a securitization operation, it may be considered a security backed by credit or credit rights.

It should be noted that some receivable tokens or fixed income tokens, despite being classified as securities, may not be characterized as a securitization transaction, when, cumulatively:

• There is a public offering of a single credit right, via an assignment instrument or other modality, without co-obligation or other form of risk retention by the assignor or third party;
• The cash flow from the credit right flows directly to investors, with minimal interference from the transferor or third parties to enable the transfer of the flow;
• There are no predetermined mechanisms for the replacement, repurchase or revolving of the transferred credit right, nor any co-obligation for the fulfillment of the collective investment contract offered;
• There are no previously contracted service providers; and
• In the event of default, it is up to the investor to adopt judicial or extrajudicial collection measures, and the investor may hire collection agents.