Understand the criminal implications of the new CMN resolutions
White-collar crime and banking specialists clarify the measures that just became effective
Resolutions No. 4,844 and 4,841, recently edited by the National Monetary Council (CMN), that shall be enforced effective September 1st, bring new regulations related to foreign exchange market transactions and the declaration of assets and money held abroad. Learn the details of each of them and their impacts.
Resolution No. 4,844/2020
Resolution No. 4,844/2020 provides that, as of September, transactions equal to or over BRL 100,000.00 (one hundred thousand Reais) in deposit accounts of individuals or legal entities that reside or have headquarters abroad must register these assets with Sisbacen – except for occasional situations in which Bacen may request information on transactions below this limit. Up to the enforcement of this new regulation, article 26 of Resolution nº 3.568 imposed the maximum amount established of BRL 10,000.00 (ten thousand Reais), which the new regulation changed.
Resolution No. 4,841/2020
In turn, Resolution No. 4,841/2020 increased the maximum amount of assets and money that may be held abroad by individuals or legal entities that are resident, domiciled, or headquartered in Brazil, without the need to communicate Brazilian authorities. According to the previous regulation, values should be less than USD 100,000.00 (one hundred thousand American dollars), with this recent change, it became USD 1,000,000.00 (one million American dollars).
Criminal impacts of the new measures
These changes have important consequences regarding the crimes set forth in Article 22, caput and sole paragraph of Law No. 7,492/1986, which encompasses the acts of carrying out unauthorized exchange transactions “to foster the illegal transfer of funds abroad”, as well as cash smuggling or maintaining deposits abroad “without disclosing them to the competent authority”, that are punishable with 2 to 6 years imprisonment, and a fine.
The enforcement of these types of crimes depends on statutory law. In this way, the CMN resolutions are, therefore, one of the parameters that justify the need for criminal law enforcement to shelter the national financial system from any potentially harmful conduct. In other words, to conduct transfers in foreign-currency exchange, remittance of funds abroad, and maintain values abroad below the new limits determined by the CMN, even if not reported to the competent Brazilian authorities, are not considered a crime.
The impact of this change is even more significant as it affects the criminal proceedings in progress and those already finalized. This may also benefit those who are facing investigation or have already been charged for these crimes or even if serving a sentence.
This means that, if the amounts addressed in these criminal investigations, proceedings, or convictions discuss values under BRL 100,000.00 (one hundred thousand Reais) in the case of currency evasion, and USD 1,000,000.00 (one million American dollars) in the case of financial transactions and maintenance of deposits abroad, a criminal prosecution is no longer justifiable, and the respective cases will be dismissed.
As these crimes are also subjected to other penalties, such as administrative sanctions, it is necessary to analyze the case at hand to better verify the benefits granted in light of the new CMN resolutions.