It is worth understanding in more detail what this normative option recently introduced by Decree 11,249/2022, published in November, is about. The aforementioned decree provides for the procedure for offering liquid and certain credits, owned by the interested party or acquired by him from third parties, recognized by the Union, its municipalities and public foundations, resulting from final and unappealable decisions.
Going forward a little, the legal text allows, in Article 2, that Union creditors, holders of public debt securities (government debts), may use them for various purposes, such as: (i) the discharge of debts in installments or debts enrolled in active debt of the Union, including in the context of a tax transaction; (ii) the purchase of public properties; (iii) the payment of granting of delegations of public services and other types of business concession promoted by the Union; (iv) the acquisition of a shareholding held by the Federal Government; and (v) the purchase of rights from that entity.
Among all the purposes highlighted, the one that calls our attention is the hypothesis of using government debts for the payment of grants of public services. This is because sports betting was framed by Law 13,756/2018, as fixed quota lottery modalities, that is, species of public service exclusive to the Union, under the terms of article 29 of that law.
In the most recent version released from the regulatory decree of Law 13,756/2018, it is foreseen that the exploitation of sports betting will depend on authorization from the Federal Executive Power, valid for a period of 5 years, at a cost of R$ 22.2 million (US$ 4.2m).
Therefore, it is observed that with the enactment of Decree 11.249/2022, there is now the express possibility of an interested party applying for an operating authorization as a fixed-quota lottery operator to use their own government debts or purchased from third parties to pay the high amount of R$ 22.2 million (US$ 4.2m). For those interested in becoming an authorized operator, there is the possibility of not disbursing the amount in cash, and of making use of public debt securities.
The greatest interest is given by the possibility of acquiring government debts with a large discount. Due to the Government's delay in paying their debts, creditors, often tired of waiting years and years to receive what is owed to them, agree to negotiate the amounts they have to recover with third parties, for a lower amount, in exchange for receiving this reduced amount in advance.
The public debt securities market has proved to be very attractive and has drawn the attention of many people. Precisely because of this growing interest, the government debts market has also been the target of constant fraud. Opportunists falsify titles in search of obtaining illicit advantages.
This type of conduct has a double warning signal. On the one hand, it pays attention to individuals interested in making use of the benefits of acquiring government debts with a discount to pay public service grants. And, on the other hand, it demands from the Public Power, a greater rigor in checking the suitability of these securities at the time they are offered as a payment currency.
For the entity granting operating authorizations to sports betting operators, it will be necessary to verify the origin of the government debts offered, that is, to examine the process that originated it, if there is a final and unappealable decision, if the amount defined as effectively due by the Judiciary is consistent with the indicated credit, and if the holder of the security can prove its acquisition, in case of purchase made with third parties, among other preventive measures. Finally, the assessment of the authenticity of the debt will end up extrapolating the competencies of the Executive Branch, which will inevitably need to rely on the National Treasury Attorney's Office to carry out the credit analysis.
With these caveats in mind, the advent of Decree 11,249/2022, by allowing the payment of public service grants through the use of debts, expands the range of options for operators interested in entering the regulated sports betting market, as soon as that happens. The operator is no longer obliged to make a cash disbursement, and now has the possibility of paying the grant fee, currently stipulated at R$ 22.2 million (US$ 4.2m), through government debts. Now it's a matter of waiting for the market to open to see if operators will make use of this feature.
Rafael Marchetti Marcondes
Professor of Sports and Tax Law. Doctor and Master in Tax Law from PUC/SP. Master in Sports Management by ISDE/ FC Barcelona. Specialist in Tax Law from FGV/SP. Bachelor of Laws from PUC/SP. Member of the Brazilian Institute of Sports Law (IBDD). Lawyer in São Paulo.
Source: Lei em Campo
