Resolution CMN No. 3265 — Regulates the Foreign Exchange Market and Provides Other Measures

RESOLUTION NO. 003265

Regulates the Foreign Exchange Market and provides other measures.

THE CENTRAL BANK OF BRAZIL, pursuant to Article 9 of Law No. 4,595 of December 31, 1964, makes public that the NATIONAL MONETARY COUNCIL, in an extraordinary session held on March 4, 2005, based on Article 4, items V, VIII, and XXXI, of said Law, in Laws No. 8,880 of May 27, 1994, No. 9,069 of June 29, 1995, No. 10,192 of February 14, 2001, in Decree-Laws No. 857 of September 11, 1969, No. 1,060 of October 21, 1969, and considering the provisions in Laws No. 4,131 of September 3, 1962, No. 7,766 of May 11, 1989, and No. 9,613 of March 3, 1998, in Decree-Law No. 9,025 of February 27, 1946, and in Decrees No. 23,258 of October 19, 1933, No. 42,820 of December 16, 1957, and No. 55,762 of February 17, 1965,

HAS RESOLVED:

Article 1. Establish that the Floating Rate Foreign Exchange Market and the Free Rate Foreign Exchange Market are merged into the Foreign Exchange Market, whose operation shall comply with the provisions of this Resolution and a regulation to be instituted by the Central Bank of Brazil.

Sole Paragraph. The Foreign Exchange Market encompasses foreign currency purchase and sale operations, national currency operations between residents, domiciliaries, or entities headquartered in the Country and residents, domiciliaries, or entities headquartered abroad, and operations with gold as a foreign exchange instrument, carried out through institutions authorized to operate in the Foreign Exchange Market by the Central Bank of Brazil.

CHAPTER I
Of the authorizations for the practice of operations in the Foreign Exchange Market

Article 2. Authorizations for the practice of operations in the Foreign Exchange Market may be granted by the Central Bank of Brazil to commercial banks, multiple banks, investment banks, development banks, savings banks, credit, financing, and investment companies, currency or securities brokerage companies, securities distribution companies, travel agencies, and tourist accommodation establishments.

Article 3. Agents of the Foreign Exchange Market may carry out the following operations:

I - banks, except development banks: all operations provided for the Foreign Exchange Market;

II - development banks and savings banks: specific authorized operations;

III - credit, financing, and investment companies, currency or securities brokerage companies, and securities distribution companies: purchase or sale to clients of foreign currency in cash, checks, and traveler's checks, interbank market operations, domestic arbitrages, and, through a bank authorized to operate in the Foreign Exchange Market, arbitrage with abroad;

IV - travel agencies: purchase or sale of foreign currency in cash, checks, and traveler's checks related to international trips;

V - tourist accommodation establishments: exclusively purchase from clients of foreign currency in cash, checks, and traveler's checks.

Article 4. To be authorized to operate in the Foreign Exchange Market, an institution part of the National Financial System must:

I - possess paid-in capital and reference equity not lower than the levels established by specific regulation, keeping them updated while the authorization granted by the Central Bank of Brazil remains in force;

II - designate, among the administrators homologated by the Central Bank of Brazil, the person responsible for operations related to the Foreign Exchange Market.

Article 5. With prior consent of the Central Bank of Brazil, foreign exchange operations may be conducted by an institution not authorized to operate in the Foreign Exchange Market, acting as agent for an authorized agent with whom it has entered into a specific agreement, provided that responsibility for compliance with regulations always lies with the authorized agent.

Article 6. The operating hours of travel agencies and tourist accommodation establishments for carrying out foreign exchange operations are free, while other authorized agents must respect the norms governing their operating hours.

Article 7. The constitutive acts of travel agencies and tourist accommodation establishments authorized to operate in the Foreign Exchange Market must include the practice of foreign exchange operations as one of their purposes.

Article 8. The Central Bank of Brazil shall define the criteria for receipts and payments to and from abroad through the use of internationally used credit and debit cards, as well as for international postal financial transfers, including postal orders and international postal money orders.

Article 9. Regarding the authorizations granted under this chapter, the Central Bank of Brazil may, for reasoned grounds:

I - revoke or temporarily suspend them due to convenience and opportunity;

II - cancel them due to irregularities found in administrative proceedings, or suspend them provisionally, in accordance with the law;

III - cancel them due to the institution's failure to carry out a foreign exchange operation for a period exceeding one hundred and eighty days.

CHAPTER II
Of the operations carried out in the Foreign Exchange Market

Article 10. Natural persons and legal entities may buy and sell foreign currency or carry out international transfers in Brazilian Reais, of any nature, without value limitation, observing the legality of the transaction, based on economic justification and responsibilities defined in the respective documentation.

§1º This article includes purchases and sales of foreign currency by natural or legal persons, residents, domiciliaries, or entities headquartered in the Country, at a bank authorized to operate in the Foreign Exchange Market, for the purpose of establishing availability abroad and its return.

§2º Investments abroad in the capital and derivatives markets by natural or legal persons in general, as well as any investments abroad by institutions authorized to function by the Central Bank of Brazil and funds of any nature, must observe specific regulation.

Article 11. The reinvestment of resources transferred as investments, including in other assets, as well as the earnings obtained abroad, is permitted, provided that the purposes allowed in the relevant regulation are observed.

Article 12. The following conditions must be observed in operations carried out in the Foreign Exchange Market:

I - registration in the Central Bank Information System - Sisbacen;

II - observance of operational provisions defined by the Central Bank of Brazil; and

III - compliance with guidelines and procedures provided for in legislation or specific regulation.

Article 13. Foreign exchange operations, whose formalization and classification instruments will follow a model defined by the Central Bank of Brazil, shall have a maximum settlement period of seven hundred and twenty days, counted from the date of their contracting, observing:

I - the periods established by the Central Bank of Brazil, according to the nature of the foreign exchange operation; and

II - extensions granted by that Autarchy in exceptional situations.

Article 14. Foreign exchange operations contracted for a value less than US$50,000 (fifty thousand United States dollars) or its equivalent in other currencies are freely canceled by agreement between the parties or removed from the foreign exchange positions of institutions. The Central Bank of Brazil may define criteria regarding cancellations and offsets of foreign exchange contracts for higher values.

Sole Paragraph. The provisions of this article do not apply to simplified and interbank foreign exchange operations; for these, cancellation, offset, extension, or early settlement are prohibited.

Article 15. In the foreign exchange contract, the buyer, seller, foreign currency value, national currency value, foreign currency code, and exchange rate are not subject to alteration.

Article 16. In the operation of selling foreign currency, the countervalue in national currency must be debited from an account held by the buyer or paid with a check issued by him, named to the authorized selling agent, crossed and non-endorsable.

Sole Paragraph. Excluded from the provisions of this article are simplified import foreign exchange operations and those related to payment of international orders, when carried out by intermediary or representative, which must observe specific regulation, as well as the sale of foreign currency whose countervalue in national currency does not exceed R$10,000.00 (ten thousand reais), per client.

Article 17. In the operation of purchasing foreign currency, the countervalue in national currency must be credited to an account held by the seller or delivered by means of a check, issued by the authorized agent to operate in the Foreign Exchange Market, named to the seller of the foreign currency, crossed and non-endorsable.

Sole Paragraph. Excluded from the provisions of this article is the purchase of foreign currency whose countervalue in national currency does not exceed R$10,000.00 (ten thousand reais), per client.

CHAPTER III
Of the obligations of agents authorized to operate in the Foreign Exchange Market

Article 18. The authorized agents to operate in the Foreign Exchange Market referred to in this Resolution, as well as companies that administer internationally used credit or debit cards and those that carry out international postal financial transfers, must act in the direction of complying with the legislation and regulation that discipline the respective matters.

Article 19. Authorized agents to operate in the Foreign Exchange Market must observe rules for the perfect identification of their clients, as well as verify the responsibilities of the parties involved and the legality of the operations carried out.

CHAPTER IV
Of the exchange rate

Article 20. The exchange rate is freely pacted between agents authorized to operate in the Foreign Exchange Market or between these and their clients.

Article 21. The exchange rate pacted in operations for spot or future settlement must reflect exclusively the price of the negotiated currency for the date of contracting the foreign exchange operation; in operations for future settlement, the pacting of a premium or bonus is permitted in the form defined by the Central Bank of Brazil.

Article 22. The exchange rate pacted in forward operations must mirror the price of the foreign currency for the date of settlement of the foreign exchange operation, in accordance with specific regulation.

Article 23. Agents authorized to operate in the Foreign Exchange Market are subject to penalties and other sanctions provided for in current legislation and regulation for the purchase or sale of foreign currency at rates that differ from those practiced by the market or that may constitute capital flight, artificial price formation, or price manipulation.

CHAPTER V
Of Accounts in National Currency of Residents, Domiciliaries, or Entities Headquartered Abroad and of International Transfers in Reais

Article 24. International transfers in Reais are considered the credits or debits made in an account in national currency held by a resident, domiciliary, or entity headquartered abroad, maintained in the Country at a bank authorized to operate in the Foreign Exchange Market by the Central Bank of Brazil.

Article 25. In international transfers in Reais, the same criteria, provisions, and requirements established for foreign exchange operations in general and specific guidelines provided for in regulation must be observed, where applicable.

Article 26. Registration in Sisbacen of deposit accounts in national currency, in the Country, held by natural or legal persons residing, domiciled, or headquartered abroad, is mandatory.

Article 27. Movements occurring in accounts of residents, domiciliaries, or entities headquartered abroad, with a value equal to or greater than R$10,000.00 (ten thousand reais), must be registered in Sisbacen, in the form established by the Central Bank of Brazil.

Article 28. The use of accounts of natural or legal persons residing, domiciled, or headquartered abroad for the realization of international transfers in Reais of interest to third parties is prohibited.

Sole Paragraph. The prohibition referred to in this article applies even to accounts held by financial institutions domiciled or headquartered abroad maintained at financial institutions authorized to operate in the Foreign Exchange Market in the Country.

Article 29. Balances of own resources existing in accounts of natural or legal persons residing, domiciled, or headquartered abroad may be freely converted into foreign currency, for remittance abroad, exclusively at banks authorized to operate in the Foreign Exchange Market.

Article 30. Debits and credits to accounts held by embassies, consular departments, or representations of international organizations accredited by the Brazilian Government are exempt from documentary proof and declaration of the reason for the transfer.

Article 31. Movements in accounts held by an embassy, consular department, or representation of an international organization accredited by the Brazilian Government, including amounts greater than R$10,000.00 (ten thousand reais), may be made in cash or by any payment instrument.

CHAPTER VI
General and Transitional Provisions

Article 32. Agents who, on the date of publication of this Resolution, are authorized/accredited to operate in the Free Rate and Floating Rate Foreign Exchange Markets are automatically authorized to operate in the Foreign Exchange Market.

Sole Paragraph. Criteria for new authorizations of travel agencies and tourist accommodation establishments to operate in the Foreign Exchange Market, including for the opening of new posts, permanent or provisional, will be published opportunistically.

Article 33. In operations of purchase and sale of gold as a foreign exchange instrument against national currency and in arbitrages of gold as a foreign exchange instrument against foreign currency, carried out by financial institutions authorized to operate in the Foreign Exchange Market, the same rules applicable to the purchase and sale of foreign currency must be observed, composing the foreign exchange position and impacting its limits without any distinction.

Article 34. Authorizations granted until the date of publication of this Resolution for the opening and movement of deposit accounts in foreign currency at banks authorized to operate in the Foreign Exchange Market in the Country are maintained.

§1º Authorized agents to operate in the Foreign Exchange Market in the Country, foreigners temporarily in the Country, and Brazilians residing abroad may maintain a free-movement account in foreign currencies at banks authorized to operate in the Foreign Exchange Market in the Country.

§2º The Central Bank of Brazil may authorize credit card administrators, travel agencies, and tourism service providers operating with outbound or inbound tourism, authorized or not to operate in the Foreign Exchange Market, to maintain a restricted-movement account in foreign currency at a bank authorized to operate in the Foreign Exchange Market in the Country.

§3º Revocation, cancellation, or annulment of authorization to operate in the Foreign Exchange Market implies the closure of the foreign currency account with sale to an authorized agent to operate in the Foreign Exchange Market of the existing balance, within the period established by the Central Bank of Brazil.

§4º Installment payment of a payment order received from abroad is prohibited; such order must be negotiated within a maximum period of ninety days counted from the date the resources became available for payment, after which it must be canceled and returned to the sender.

Article 35. Settlement in the Foreign Exchange Market, in foreign currency equivalent, of commitments in national currency, of any nature, entered into between natural or legal persons residing, domiciled, or headquartered in the Country and natural or legal persons residing, domiciled, or headquartered abroad, is permitted, upon presentation of pertinent documentation.

Article 36. The Central Bank of Brazil will issue the necessary instructions for the fulfillment of this Resolution, providing, inclusive, on:

I - foreign exchange position in foreign currency of banks authorized to operate in the Foreign Exchange Market and their limits, possibly also establishing the obligation to constitute deposits in that Autarchy for values exceeding the purchased position, inclusive regarding remuneration or not for the deposit, and cost for excess sold position;

II - operational limits of other agents authorized to operate in the Foreign Exchange Market and the criteria for their compliance.

Article 37. This Resolution enters into force on March 14, 2005, when Resolutions No. 1,552 of December 22, 1988, No. 1,600 of April 20, 1989, No. 1,620 of July 26, 1989, No. 1,671 of December 7, 1989, No. 1,680 of January 31, 1990, No. 1,690 of March 18, 1990, No. 1,797 of February 27, 1991, No. 1,925 of May 5, 1992, No. 1,946 of July 29, 1992, No. 2,104 of August 31, 1994, No. 2,588 of January 25, 1999, No. 2,614 of June 30, 1999, No. 2,664 of October 28, 1999, as well as item XIV of Resolution No. 38 of October 15, 1966 and Article 6 of Resolution No. 1,968 of September 30, 1992, are revoked.

Brasília, March 4, 2005.

Henrique de Campos Meirelles
President