Disregard for the principle of legal reserve in the definition of the crime of foreign exchange evasion

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Law on Crimes against the National Financial System

Law on Crimes against the National Financial System

Recent decision of TRF of the 3rd region [1] gives greater scope to the crime of maintaining undeclared foreign deposits – modality of the crime of evasion of foreign currency [2], provided for in the second part of the sole paragraph of art. 22 of the Law on Crimes against the National Financial System.

The positioning was unanimously adopted in a Resource in the Strict Direction of MPF in the face of a decision of 1st degree that rejected a complaint against investor who, between 1997 and 2003, subscribed shares of the Opportunity Fund in the Cayman Islands, being investigated in the “Operation Satiagraha”.

The accusation was originally rejected by two technical-legal arguments and one of criminal policy: 1º) only the lack of a declaration to the SRFB would not constitute evasion of foreign exchange, and also the absence of a declaration to the Central Bank was necessary; 2) the absence of a declaration of the maintenance of quotas of investment funds abroad for the BACEN would not constitute a crime, the imputation of which would be restricted to the maintenance of undeclared “deposits”, and the monetary authority itself distinguishes between “deposits “Of other investments; 3) the prescription of the punitive claim would be close to implementation, evidencing the nonsense of criminal prosecution.

The MPF argued in its appeal that the offense in question would criminalize the maintenance of Brazilian capital abroad without proper declaration to the competent supervisory body, not only through the maintenance of currency or money in foreign bank accounts, but also through participation in the capital of corporations, fixed income securities, shares, real estate, etc.

TRF3 upheld the appeal, stating that the incrimination of the maintenance of undeclared deposits overseas would protect both the fiscal assets and the foreign exchange reserves of the country, which is why a statement would be required from the BACEN and the SRFB. In the absence of a statement to the Internal Revenue Service, the crime would be consummated as long as the deposits abroad are in excess of R $ 140.00 (article 25, paragraph 1, item III, of Law No. 9,250 / 95 and Decree No. 3,000 / 99). In addition to this obligation, there would be a need for a Declaration of Brazilian Capitals Abroad, addressed to BACEN, from a minimum amount, which has changed over the years (today, equivalent to US $ 100,000.00). The declaration to the BACEN became mandatory from 2001, but the obligation of declaration to the SRFB continued to exist and, according to TRF3, by itself, would characterize the crime of evasion of foreign exchange. ” In both cases, non-compliance with the duty entails a violation of the provisions of art. 22, sole paragraph, final part, of Law No. 7.492 / 86 “.

The crime of evasion of foreign exchange

The crime of evasion of foreign exchange

In this case, the Regional Court stated that ” the mere fact that the Claimant did not declare OPPORTUNITY FUND’s quotas to the Federal Revenue Service would already constitute, in theory, the crime of evasion of foreign exchange.” In addition, the Court stated that ” it is not unreasonable to hold that the shares of OPPORTUNITY FUND could not be considered equivalent to the maintenance of foreign deposits “. The defendant cites case of conviction for evasion of foreign currency of defendant who kept money applied in foreign fund without declaring to the competent authorities.

Regarding the imminence of the prescription, the Court adopts the 438 STJ’s summons, which prohibits the recognition of “virtual” or “anticipated” prescription.

In my view, the positioning is, at least in part, wrong.

No one else has any doubts (the STF itself has already stated this in AP 470) that keeping foreign deposits is not a crime, as long as they are properly declared [3]. By the way, the surveys conducted by the BACEN in recent years show an increase in capital flight, the causes of which can be speculated [4].

The duty of information on the assets held by Brazilians abroad has existed in the Brazilian legal system since 1962, when Law 4,131 / 62, in its art. 17, provided that individuals and corporations domiciled or headquartered in Brazil would be obliged to declare to the extinct Superintendency of Currency and Credit (SUMOC), in the manner established by the respective Council, the assets and values ​​they hold abroad, including bank deposits, except in the case of foreigners, those that they had when entering Brazil. [5]

This provision was repealed by Decree-Law No. 94 of December 30, 1966, which, in its art. 4, provided that declarations of existing assets and income from abroad would be automatically made by including the respective amounts in the declarations of assets and income relating to the financial year, ie the Federal Revenue Secretariat. The same legal statute provided in its art. 6th that the Department of the Income Tax could provide the BACEN with any information regarding assets abroad belonging to the residents in the Country.

However, only in 1969, according to the provisions of Article 1 of Decree-Law No. 1,060 [6], of October 21 of that year, a new obligation of declaration, now attributed to BACEN, appeared. This jurisdiction was repealed by Resolution No. 139, dated February 18, 1970, in which the body itself delegated attribution to the Ministry of Finance [7]. In turn, the Ministry of Finance, through the Federal Revenue Secretariat, issued Regulatory Declaratory Act No. 7, dated July 31, 1981, in which it determined that the obligation established in Decree No. 1,060 / 69 would be met by the annual declaration income tax [8].

Resolution No. 2.337 / 96 of the National Monetary Council established (article 1) that Brazilian investments abroad and loans and financing granted to the Central Bank of Brazil were subject to registration with the Central Bank of Brazil, regardless of the type, means and form used in the operations. resident abroad, by residents in the country, in national or foreign currency, or in the form of goods and services (item III).

This situation lasted until the revocation of Resolution 139/70 by Article 8 of Circular No. 2,911, of November 29, 2001, which authorized the BACEN to set limits and conditions for the declaration of Brazilian capital outside the national territory. Shortly thereafter, on December 7, 2001, Circular 3,071 of BACEN was published, Article 4 of which issued a declaration of values ​​less than ten thousand reais that were deposited abroad on December 31. Therefore, until the advent of this Circular, there was a discussion about the authority that was addressed to the declaration of assets abroad (Federal Revenue or Central Bank), prevailing the understanding that, in doubt, the statement to the Treasury was sufficient.

Since 2001, the BACEN has begun the process of identifying the availability of Brazilians abroad, regulating the declaration of Brazilian capital abroad (CBE), as already provided in art. 1 of Decree-Law No. 1,060 / 69. The body began to publish circulars annually, establishing deadlines and limits so that Brazilians, individuals or corporations, holders of funds abroad, had to declare values ​​above a certain level.

Among the various objectives of this mapping (which go beyond the limits of this brief analysis), there is the expectation of return of these capitals, the basic guideline of the Brazilian exchange rate policy.

Therefore, today, the person who maintains resources abroad has the obligation to inform them through two declarations (each with deadlines and own procedures informed by the responsible body): one to SRFB ( Statement of Annual Adjustment of Income Tax [ 9] ) and another to the BACEN ( Declaration of Brazilian Capitals Abroad [10] ).

With the non-compliance with the first declaration, in addition to administrative infractions, the agent incurs a crime against the tax order (“tax evasion”), provided for in Law No. 8,137 / 90. It is the noncompliance of the information to the BACEN that subjects the agent to the practice of crime against the National Financial System (Law nº 7.492 / 86) [11]. This distinction is based on the different legal rights protected by criminal law. This modality of “currency evasion” does not exist to protect the tax order (fiscal equity), but only, in general terms, the Brazilian exchange rate policy (balance and control of foreign exchange reserves). Since the issuance of Circular 3,071 / 01, BACEN regulates this control, in order to know the composition of the country’s net external liabilities.

For the purpose of analyzing the typical crime of foreign exchange evasion, as already seen, from 1986 (year of publication of the LCSFN) until 2000, the only obligation of the holder of assets abroad was with the Treasury [12]. In this period, information on “balances of financial investments and bank current accounts” above R $ 140.00 [13] was mandatory. Those who did not declare balance abroad to the SRFB above this amount practiced a tax offense and, at the same time, a crime against the National Financial System.

Since 2001, however, it is only a crime against the Financial System that does not declare to the BACEN, since the control of exchange reserves has been regulated exclusively by this body, which has become, therefore, the ” competent federal office “. which refers to the sole paragraph of art. 22 of Law No. 7.492 / 86 (blank criminal law).

What concerns us most about the decision of TRF3, however, is not the re-discussion of which body the addressee of the declaration, since the STF itself already recognizes the authority of the BACEN, but rather what information is pertinent for the analysis of the typicality.

The criminal law refers to the maintenance of ” undeclared deposits “. In our view, there is no way to extend the concept of ” deposit ” – which must be sought in the Economy [14] – to encompass all kinds of goods and values, as suggested by the MPF in the CSR judged by the TRF3. Far from it. Those who, for example, own a property abroad in excess of U $ 100,000 and do not declare it to BACEN in the right term do not practice evasion of foreign exchange, but, as a result, commit an administrative offense. At the same time, if it does not declare the same good to the Federal Revenue Service, it can practice a tax offense, depending on the constitution of the tax credit in an administrative proceeding that must necessarily precede any criminal investigation (and no investigation could be instituted).

BACEN itself, by resolution, distinguishes between the ” deposit ” of other types of assets and values ​​(currency lending, financing, financial leasing, direct investment, portfolio investment, derivative financial instruments and other investments, including real estate and other goods) [15].

Thus, there is no doubt that ” deposit ” is a category of its own. And if the criminal law refers exclusively to the ” deposit “, to extend this concept is to violate the Principle of the Legal Reserve, which is forbidden constitutionally, especially if the interpretation is in disfavor of the accused (prohibition of analogy in malam partem ).

An analysis of the proposed wording of the draft new Penal Code (PLS 236/2012) and the replacement of the Temporary Committee for the Study of Reform reveals that the term ” deposit ” continues to comprise the criminal type and that the “competent federal office” is now replaced by “competent federal authority”. I understand that this clearly reveals that the intention of the legislator is to remain criminalizing through this criminal type exclusively the ” deposits ” not declared abroad and that the “body” responsible for this control will remain the Central Bank of Brazil.

I do not intend to deepen the debate about the prescription (do not see how consent to the processing of a criminal case when the extinction of punishment is right), but I understand it timely to draw attention, in the substitute presented the new draft Penal Code, the punishment of this crime is being increased to 3 to 8 years (today it goes from 2 to 6). A substantial increase that will have reflection on the prescription and potentially on the initial regime of fulfillment of penalty.

Finally, it seems to me that the regional court’s understanding is symptomatic of a particularly critical period for Economic Criminal Law. The widespread yearning for punishment of the so-called “white-collar criminal” and disbelief in the effective execution of the sentence in this crop are contaminating judicial interpretations. Rampant punitivism provides demagogic and political arguments that are serving as grounds for decisions that violate the law (especially in precautionary measures). At the moment, I think it is fundamental to preserve the classic principles and guarantees of criminal law, regardless of the type of crime and who the defendant is. In a State governed by the rule of law, only the condemnations that observe the legal system are just.