Resolution Coaf No. 041, of 08.08.2022

Provides for the fulfillment of anti‑money laundering, counter‑terrorism financing and proliferation of weapons of mass destruction duties legally attributed to commercial or mercantile factoring companies, pursuant to § 1 of art. 14 of Law No. 9,613 of March 3, 1998, and related legislation.

The PRESIDENT OF THE COUNCIL FOR THE CONTROL OF FINANCIAL ACTIVITIES – COAF, using the powers conferred by items II and IV of art. 9 of the Statute approved by Decree No. 9,663 of January 1, 2019, kept in force, in accordance with art. 9 of Law No. 13,901 of November 11, 2019, as compatible with Law No. 13,974 of January 7, 2020, makes public that the Plenary of the Council, in a session held between August 3 and 4, 2022, based on art. 8, items II, IV and V, of the said Statute and considering the provisions of arts. 9, sole paragraph, item V, 10, 11 and 14, § 1, of Law No. 9,613 of March 3, 1998, Law No. 13,260 of March 16, 2016, and Law No. 13,810 of March 8, 2019, resolved:

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CHAPTER I

OBJECT AND SCOPE OF APPLICATION

Art. 1 This Resolution aims to regulate the manner in which the anti‑money laundering, counter‑terrorism financing and weapons‑of‑mass‑destruction proliferation duties (PLD/FTP) legally attributed to commercial or mercantile factoring companies are fulfilled, in any of their modalities.

Sole paragraph. The companies referred to in this article must observe the provisions of this Resolution in all business and operations they carry out, including those that involve:

I – purchase or sale of other goods or acquisition or provision of other services not related nor linked to factoring activity; and

II – purchase or sale of movable or immovable goods that form part of their assets.

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CHAPTER II

PLD/FTP POLICY

Art. 2 The companies referred to in art. 1 must implement and maintain a policy formulated with the objective of ensuring compliance with their PLD/FTP duties established in arts. 10 and 11 of Law No. 9,613 of March 3, 1998, and in other related legal provisions, in a manner compatible with their size and volume of operations, and proportional to the corresponding risks.

§ 1 The policy referred to in the caput must contain, at a minimum:

I – guidelines for:

a) definition of roles and responsibilities regarding compliance with the duties specified in COAF regulations, without prejudice to the broad liability provided for in art. 12 of Law No. 9,613 of 1998;

b) prior assessment of new products and services, as well as the use of new technologies, concerning money‑laundering, terrorism‑financing and weapons‑of‑mass‑destruction proliferation risks (LD/FTP);

c) internal assessment of LD/FTP risks;

d) promotion of an organizational culture of PLD/FTP, including employees, outsourced service providers and collaborators in general, as well as partners with relevant activity in the business models adopted by the supervised entity, taking into account the corresponding activities;

e) selection and hiring of employees, outsourced service providers and collaborators in general, as well as partners with relevant activity in the business models adopted by the supervised entity, considering the LD/FTP risks related to the corresponding activity;

f) continuous training of employees on the PLD/FTP theme;

g) periodic verification of compliance with the policy, procedures and internal controls covered by this Resolution, as well as identification and correction of observed deficiencies;

h) prevention of conflicts between commercial and corporate interests and PLD/FTP mechanisms.

II – guidelines for the implementation of internal procedures and controls intended to:

a) carry out due diligence for the identification and qualification of clients and other involved parties, including ultimate beneficiary(ies), in the operations they perform;

b) obtain information about the purpose and nature of the business relationship;

c) collect, verify, validate and update registration information, aiming to know the clients, employees, partners and outsourced service providers;

d) identify politically exposed persons (PEP) involved in the operations, including ultimate beneficiary(ies);

e) identify persons subject to asset‑freeze determinations originating from the United Nations Security Council (UNSC) or its sanctions committees, as provided for by Law No. 13,810 of March 8, 2019, and related legislation;

f) duly record operations, regardless of how they may be formally designated;

g) monitor, select and analyze atypical or suspicious operations and situations;

h) forward communications due to COAF; and

III – formal commitment of senior management to the effectiveness and adequacy of the policy, procedures and internal controls of PLD/FTP.

§ 2 The policy referred to in the caput must be disclosed to employees, outsourced service providers and collaborators in general, as well as to partners with relevant activity in the business models adopted by the supervised entity, using clear and accessible language, at a level of detail compatible with the roles they perform and the sensitivity of the information.

§ 3 The policy referred to in the caput must be documented, kept up‑to‑date and approved, within the company, by its administrators, without prejudice, in any case, to its broad liability as provided for in art. 12 of Law No. 9,613 of 1998, even in the eventual absence of proper approval.

Art. 3 It is permitted that factoring companies that belong to a conglomerate or economic group, including those controlled abroad, fulfill the duty set out in art. 2 by adopting a single PLD/FTP policy observed within the conglomerate or group, provided that this single policy contains the minimum content indicated in that article.

Art. 4 The PLD/FTP policy adopted by factoring companies that belong to a conglomerate or economic group, whether in the manner admitted by art. 3 or not, must in any case include guidelines for the implementation of information‑sharing procedures within the conglomerate or group for PLD/FTP purposes, without prejudice to any legal limits that must be observed regarding such sharing.

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CHAPTER III

GOVERNANCE OF THE PLD/FTP POLICY

Art. 5 The companies referred to in art. 1 must have a governance structure compatible with their size and volume of operations and proportional to the LD/FTP risks related to their activities, aiming to ensure compliance with their PLD/FTP policy as well as the related procedures and internal controls.

Sole paragraph. Regardless of how the governance structure provided for in the caput is established, administrators, in any case, do not exempt themselves from liability, in the manner of art. 12 of Law No. 9,613 of 1998, for compliance with the duties attributed to legal entities by arts. 10 and 11 of the Law and the corresponding COAF regulations.

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CHAPTER IV

INTERNAL RISK ASSESSMENT

Art. 6 The companies referred to in art. 1 must carry out an internal assessment of LD/FTP risks related to their activities, in a manner compatible with their size and volume of operations, with the objective of identifying, analyzing and understanding such risks.

§ 1 For risk identification as referred to in the caput, the internal assessment must consider, at a minimum, the following risk profiles:

I – of the clients;

II – of the company itself, taking into account its business models and areas of operation, including geographic ones;

III – of the operations, regardless of how they may be formally designated, taking into account their characteristics, notably regarding payment method, goods, values, assets (including those that constitute the backing for factoring operations), products or services involved and the technologies or channels used in their execution; and

IV – of employees, outsourced service providers and collaborators in general, as well as partners with relevant activity in the business models adopted by the supervised entity, taking into account the corresponding activities.

§ 2 The identified risks must be evaluated regarding their probability of occurrence and the magnitude of the impacts associated with them.

§ 3 Risk categories must be defined that allow the adoption of reinforced procedures and controls for higher‑risk situations and simplified ones for lower‑risk situations.

§ 4 When available, assessments carried out by public authorities may be used as a subsidy for the internal risk assessment.

§ 5 It is permitted that factoring companies that belong to a conglomerate or economic group, including those controlled abroad, fulfill the duty set out in the caput by assuming the internal LD/FTP risk assessment possibly carried out centrally within the conglomerate or group, provided that this centralized assessment contains the minimum parameters foreseen in this article.

§ 6 The internal risk assessment must be:

I – documented and approved, within the company, by at least one formally designated administrator;

II – disclosed to employees, outsourced service providers and collaborators in general, using clear and accessible language, at a level of detail compatible with the functions they perform and the sensitivity of the information; and

III – reviewed at least every two years, or whenever a significant change occurs in the risk profile mentioned in § 1.

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CHAPTER V

PROCEDURES TO KNOW THE CLIENTS

Section I – General Provisions

Art. 7 The companies referred to in art. 1 must implement and maintain, in a manner compatible with their size and volume of operations, procedures to know their clients that ensure due diligence in identification, qualification and risk classification.

§ 1 The procedures referred to in the caput must be compatible with:

I – the client’s risk profile and the operation associated with it, including reinforced measures for higher‑risk cases;

II – the PLD/FTP policy; and

III – the internal risk assessment.

§ 2 The procedures mentioned in the caput must be formalized in a specific manual, kept up‑to‑date and approved, within the company, by at least one formally designated administrator.

Art. 8 The identification, qualification and risk‑classification procedures for clients must be extended, proportionally to the involved risk profiles, to partners and administrators of the corporate client, also covering representatives, attorneys or agents involved in the operation context, without prejudice to other provisions of this Resolution specifically established for them.

Sole paragraph. In the case of clients constituted as publicly‑listed companies or cooperatives, under the corresponding legislation, the procedures of the caput may be waived concerning partners, except for those who must be identified as ultimate beneficiaries pursuant to art. 15.

Art. 9 Information obtained and used in the identification, qualification and risk‑classification procedures must be:

I – kept up‑to‑date, with verification at the time of operation execution;

II – stored in computerized systems; and

III – used in the selection and analysis of operations and suspicious situations.

Art. 10 The companies referred to in art. 1 must adopt additional verification procedures for information previously obtained to know the client when there is doubt about its truthfulness or suitability or when there is suspicion of conduct compatible with an LD/FTP hypothesis.

Art. 11 The companies referred to in art. 1 may not commence a business relationship without prior adoption of the identification and qualification procedures set out in this Chapter, under penalty of committing an infraction for non‑compliance.

Section II – Identification and Qualification of Clients

Art. 12 The companies referred to in art. 1 must adopt client‑identification procedures that allow verification and validation of identity, including in non‑face‑to‑face operations.

§ 1 The procedures referred to in the caput must include obtaining, verifying and validating the authenticity of client identification information, possibly by cross‑checking such information with public and private databases.

§ 2 Identification procedures for natural‑person clients or representatives/agents of corporate clients must ensure confirmation that the person presenting themselves for a given operation is indeed who they claim to be, by means of:

I – verification of an official photo ID when there is face‑to‑face contact; or

II – verification of another reliable document or alternative mechanism that ensures adequate identity confirmation when there is no face‑to‑face contact.

Art. 13 In the identification procedures for clients and other parties involved in operations, at a minimum the following must be collected:

I – for clients classified in the lowest‑risk category, the following information:

a) full name, corporate name or trade name, CNPJ registration number, address (including electronic), date of incorporation, main activity(ies) and annual turnover for each of the last three fiscal years;

b) full name, CPF or CNPJ registration number (as applicable) and address (including electronic) of all partners, except as provided in § 3 regarding publicly‑listed companies and cooperatives, and administrators of the corporate client, as well as its representative(s), attorney(s) or agent(s) involved in the operation context; and

c) identification of ultimate beneficiary(ies) or, when identification is difficult, indication of the measures adopted to identify them.

II – for clients classified in the highest‑risk category, the following information and documents:

a) all information set out in item I;

b) copy of the contract or articles of incorporation and amendments;

c) turnover for the last fiscal semester when the client is a micro or small enterprise, or updated financial statements for others; and

d) copies of official identification documents and CPF or CNPJ (as applicable) of all partners, except as provided in § 3 regarding publicly‑listed companies and cooperatives, and administrators of the corporate client, as well as its representative(s), attorney(s) or agent(s) involved in the operation context.

§ 1 For a natural person residing abroad or a foreign person exempt from CPF registration, as defined by the Special Secretariat of the Federal Revenue of Brazil, a legally accepted travel document must be considered, and at minimum the issuing country, document number and type must be collected.

§ 2 For a legal entity domiciled abroad exempt from CNPJ registration, as defined by the Special Secretariat of the Federal Revenue of Brazil, at minimum the name, address (including electronic), and identification or registration number in the country of origin must be collected.

§ 3 For publicly‑listed companies and cooperatives, information, data or documents concerning controlling partners and administrators, as well as representatives, attorneys or agents involved in the operation context, must be collected for the specific purposes of sub‑item “b” of item I and sub‑item “e” of item II of the caput.

Art. 14 The companies referred to in art. 1 must adopt procedures that allow client qualification, covering:

I – collection of information that enables:

a) identification of the purpose and nature of the business relationship; and

b) assessment of the compatibility between the client’s economic‑financial capacity and the operation(s) performed, such as turnover data (including, when applicable, beyond what is specified in art. 13), receivable‑generation capacity, facility size, number of employees and inventory volume;

II – verification of whether clients and other parties involved in operations are politically exposed persons (PEP), as defined in COAF regulations.

§ 1 Additional client information compatible with the risk of using products and services for LD/FTP must be collected in the procedures referred to in the caput.

§ 2 Client qualification must be permanently re‑evaluated according to the evolution of the business relationship and risk profile.

Art. 15 Qualification procedures for corporate clients must include identification of ultimate beneficiary(ies), i.e., the natural person(s) who ultimately control the legal entity or who have decisive power to direct, influence or benefit from it, regardless of formal titles such as controller, administrator, officer, representative, attorney or agent.

§ 1 A minimum reference ownership percentage may be used for ultimate‑beneficiary identification, which must be established based on the client’s risk classification and cannot exceed 25% of the share capital, considering both direct and indirect participation.

§ 2 The representative of a legal entity, including an attorney or agent who effectively commands it, is also considered an ultimate beneficiary.

§ 3 The natural persons referred to in the caput must, at a minimum, be subject to the qualification procedures defined for the client’s risk category.

§ 4 When the ultimate beneficiary cannot be identified, the companies referred to in art. 1 must give special attention to the operation and, with the authorization of their administrators, evaluate the convenience of carrying it out or establishing/maintaining the business relationship.

Section III – Client Risk Classification

Art. 16 The companies referred to in art. 1 must classify their clients into risk categories defined in their internal risk assessment, based on the information obtained in the identification and qualification procedures.

Sole paragraph. The classification mentioned in the caput must be:

I – carried out based on the client’s risk profile and the nature of the business relationship;

II – reviewed whenever there are changes in the client’s risk profile or the nature of the business relationship; and

III – consider, at a minimum:

a) types of clients and other parties involved in the operations they perform;

b) types of operations, transactions, products and services traded;

c) payment methods used; and

d) manner of operation execution.

Art. 17 For client categorization into risk categories, at a minimum the following must be considered:

I – regarding the corporate client:

a) information from the contract or articles of incorporation, such as purpose, capital and duration;

b) activities actually carried out, including types of goods and services traded, client characteristics and geographic area of operation;

c) length of actual operation;

d) address;

e) financial statements, at a minimum for the previous year;

II – regarding partners, administrators, representatives, attorneys and agents of the corporate client:

a) socioeconomic profile;

b) other activities performed;

c) participation in other companies, including as attorney or holder of any other mandate;

d) nationality;

e) residential address; and

f) PEP status.

Sole paragraph. The following factors must be considered, at a minimum, for inclusion in a higher‑risk category:

I – impossibility or difficulty of:

a) identifying ultimate beneficiary(ies);

b) completing other due‑diligence procedures for identification or qualification as set out in this Chapter;

II – representation of the corporate client by a third party who is not its legal representative;

III – corporate client’s shareholding or representation by a person domiciled in a jurisdiction listed by the Financial Action Task Force (FATF) as high‑risk or with strategic deficiencies in PLD/FTP matters, or considered a tax‑favored or privileged fiscal regime, as indicated by the Special Secretariat of the Federal Revenue of Brazil; and

IV – the client’s relationship, in any capacity, with a person subject to asset‑freeze determinations from the UNSC or its sanctions committees, as addressed by Law No. 13,810 of 2019.

Art. 18 Classification of a client in the highest‑risk category does not necessarily imply communication to COAF of the operation performed with that client.

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CHAPTER VI

RECORDING OF OPERATIONS

Art. 19 The companies referred to in art. 1 must keep, for all services they provide and all operations they perform, a record that must contain, at a minimum:

I – identification of the client or counter‑party, as applicable;

II – identification of the representative(s), attorney(s) or agent(s) of the corporate client to whom the service is rendered or with whom the operation is carried out;

III – indication of the object, including:

a) in the case of a factoring operation, indication of the backing of the operation, with information on the type(s) of title(s) negotiated and their identification (number, date, amount, etc.), including the name or corporate name of the drawee(s) and their CPF or CNPJ; and

b) in other cases, type of merchandise, good or commercial service bought, acquired or alienated, with a detailed description;

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Published on 09/08/2022 02:48 – Modified on 11/08/2022 04:08

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IV – indication of the amount, including, in the case of a factoring operation, the indication of gross amount and net amount, if any, with a detailed description of the difference between gross and net amounts;

V – date of execution;

VI – form and instructions, if any, for payment;

VII – payment method(s);

VIII – payment date(s);

IX – receipt(s)/settlement receipt, with information on:

1. payment method(s);
2. payment date(s); and
3. in the case of cash payment or any other means that could enable anonymity or hinder traceability (e.g., a check or another title issued to the bearer, or a virtual asset not nominally linked to the payer), identification, as appropriate, of the natural person who delivered the cash, the check, the title or the asset;

X – analysis that determined the client’s risk classification.

CHAPTER VII

OF MONITORING, SELECTION AND ANALYSIS OF OPERATIONS

Art. 20. Companies referred to in art. 1 must implement monitoring, selection and analysis procedures for operations, proposed operations or situations with the aim of identifying those that may constitute an indication of money‑laundering/terrorist‑financing (ML/TF) practices or related infractions.

§ 1 The procedures mentioned in the caput must:

I – be compatible with the AML/TF policy addressed in art. 2;

II – be defined based on internal risk assessment;

III – consider the PEP condition as well as the condition of representative, family member or close collaborator of a politically exposed person, according to COAF regulations; and

IV – be described in a specific manual approved by at least one company administrator.

§ 2 The period for carrying out the monitoring and selection procedures may not exceed 45 (forty‑five) days, counted from the date of occurrence.

§ 3 The period for carrying out the analysis procedures may not exceed 45 (forty‑five) days, counted from the date of selection of the operation, proposed operation or situation to be analyzed.

Art. 21. The monitoring and selection procedures must enable the identification of operations, proposed operations or situations that, considering their characteristics—especially regarding parties, other involved persons, amounts, mode of execution, means and forms of payment, lack of economic or legal basis, or incompatibility with market practices—signal, even by their unusual or atypical nature, a possible indication of ML/TF practices or related infractions, and therefore must be subject to analysis with special attention as set out in art. 22.

§ 1 The procedures referred to in the caput must result in a specially attentive analysis of operations, proposed operations or situations that, among other hypotheses:

I – appear not to arise from the client’s usual activities or line of business; II – have an economic or legal origin or basis that is not clearly ascertainable; III – are incompatible with the client’s assets, economic‑financial capacity or receivable‑generation capacity; IV – are carried out with a client for whom it is difficult or impossible to identify the final beneficiary(ies); V – involve a legal entity domiciled in a jurisdiction listed by FATF as high‑risk or with strategic deficiencies in AML/TF matters, or considered a tax‑favoured or privileged fiscal regime, as indicated by the Special Secretariat of the Federal Revenue of Brazil; VI – involve a natural or legal person whose final beneficiary(ies), shareholder(s), administrator(s), representative(s) or attorney(s) reside in a jurisdiction listed by FATF as high‑risk or with strategic deficiencies in AML/TF matters, or considered a tax‑favoured or privileged fiscal regime, as indicated by the Special Secretariat of the Federal Revenue of Brazil; VII – present, from the client or other involved parties, resistance to providing information or documents, or the provision of false or difficult‑to‑verify information or documents, for the composition of the corresponding registration or operation record; VIII – reveal the client’s or other parties’ conduct aimed at avoiding the registration required by AML/TF legislation; IX – involve payment made by a form or instrument that could enable anonymity or hinder traceability (e.g., a check or another title issued to the bearer, or a virtual asset not nominally linked to the payer); X – involve payment to or from a third party, even when authorized by the client, except when, in factoring operations, the payment is demonstrably destined to the client’s supplier of goods or services or received from a drawee of a title that underlies the operation; XI – involve payment distributed among several persons or using different means; XII – be backed by titles or receivables showing possible falsity or simulation; XIII – involve the client or other parties dispensing with advantages, prerogatives or special conditions normally considered valuable; XIV – appear to attempt to circumvent controls and records required by AML/TF legislation, including by:

a) structuring;

b) cash payment;

c) payment by means of a bearer‑issued check; or

d) payment by other means that hinder traceability, including structuring with greater complexity of titles, assets or receivables; XV – relate to a PEP or to a representative, family member or close collaborator of a PEP; or XVI – may constitute, in any other hypothesis, by their characteristics—especially regarding parties, other involved persons, amounts, mode of execution, means and forms of payment, lack of economic or legal basis or incompatibility with market practices—possible indications of ML/TF practices or related infractions.

§ 2 The procedures referred to in the caput must also result in a specially attentive analysis of operations, proposed operations or situations for which there is:

I – difficulty or impossibility to collect, verify, validate or update the client’s registration information; or II – any signal of practice directly or indirectly related to terrorism or the proliferation of weapons of mass destruction or their financing.

§ 3 The President of COAF may, by a separate act, indicate other hypotheses that, for the purposes of this Chapter, may constitute an indication of ML/TF, without prejudice to those identified by the companies themselves under art. 1.

§ 4 The procedures covered by this article must be integrated into the operational routine of the companies referred to in art. 1, including, when necessary, the performance of other diligences compatible with their activities, beyond those expressly provided for in this Resolution.

Art. 22. The analysis procedures for the operations, proposed operations or situations selected pursuant to art. 21 must gather the elements on which the conclusion of a possible indication of ML/TF practices or related infractions is based.

Sole paragraph. The analysis and conclusion referred to in the caput must be documented and the documentation must remain available for demonstration to COAF, regardless of whether it resulted in a communication to COAF under Chapter VIII.

CHAPTER VIII

OF COMMUNICATIONS TO COAF

Section I – Communication of Suspected Operations, Proposed Operations or Situations

Art. 23. Persons referred to in art. 1 must communicate to COAF operations, proposed operations or situations that, after analysis pursuant to art. 22, they conclude may constitute an indication of ML/TF practices or related infractions, based on the characteristics indicated in art. 21.

Sole paragraph. Communications to COAF under the caput must:

I – contain an indication of the elements on which the corresponding analysis was based and set out the reason(s) for concluding a possible indication of ML/TF practices or related infractions; and II – be forwarded, without prejudice to the applicable legal deadline, by the next business day after the conclusion of the procedures referred to in art. 22, observing the deadlines indicated in §§ 2 and 3 of art. 20.

Section II – Communication to COAF Regardless of Analysis

Art. 24. Persons referred to in art. 1 must communicate to COAF, regardless of analysis or any other consideration, operations, proposed operations or situations that involve:

I – payment or receipt in cash (banknotes or fractional metal coins) equal to or greater than R$ 50,000.00 (fifty thousand reais) or equivalent in another currency; and II – payment or receipt by check or another title issued to the bearer equal to or greater than R$ 50,000.00 (fifty thousand reais) or equivalent in another currency.

§ 1 The President of COAF may, by a separate act, indicate other hypotheses for communication to COAF, in the manner of the caput, regardless of analysis or any other consideration.

§ 2 Communications to COAF under the caput must be made, without prejudice to the applicable legal deadline, by the next business day after the occurrence of the operations, proposed operations or situations to be communicated.

Art. 25. Communication under art. 24 does not exempt, with respect to the reported operation, proposed operation or situation, compliance with the duties set out in arts. 21 to 23, including the possibility of additional communication if hypotheses defined in arts. 22, §§ 1, 2 or 3, and 23 are also met.

Section III – Other Common Provisions

Art. 26. Communications to COAF provided for in this Chapter must be made in accordance with the instructions defined on its website, via the Financial Activities Control System (Siscoaf).

Art. 27. Companies referred to in art. 1 must keep confidentiality, as provided by law, regarding the communications contemplated in this Chapter, including with respect to persons they may reference.

Art. 28. Communications covered by Sections I and II must highlight, among those referenced, whether any of them:

I – is a PEP or a representative, family member or close collaborator of a PEP; or II – shows a signal that the person may have performed or intended to perform an act of terrorism or proliferation of weapons of mass destruction, participated in it or facilitated its commission, including by financing.

Art. 29. Companies referred to in art. 1, when they do not identify during a calendar year any operation, proposed operation or situation that should have been communicated under Section I or II, must submit to COAF a “no‑occurrence” communication by 31 January of the following year.

CHAPTER IX

OF PROCEDURES TO KNOW EMPLOYEES, PARTNERS AND OUTSOURCED SERVICE PROVIDERS

Art. 30. Companies referred to in art. 1 must implement and maintain, in a manner compatible with their size and volume of operations, procedures to know their employees, outsourced service providers and collaborators in general, as well as relevant partners in business models they adopt, with the objective of ensuring due diligence in their identification, qualification and risk classification, in the same manner as Chapter V.

Art. 31. Companies referred to in art. 1 must keep updated the information relating to their employees, outsourced service providers, collaborators in general and relevant partners in business models they adopt, notably regarding any changes that imply a change in their risk classification.

CHAPTER X

OF STORAGE AND MAINTENANCE OF RECORDS AND DOCUMENTS

Art. 32. Companies referred to in art. 1 must preserve records and documents related to compliance with the provisions of this Resolution for a minimum of 5 (five) years, counted, as appropriate, from the date of the operation or from the termination of the relationship with the client, employee, outsourced service provider, collaborator or relevant partner in a business model, without prejudice to any related evidentiary burdens or other documentary conservation duties provided by law.

CHAPTER XI

FINAL PROVISIONS

Art. 33. Companies referred to in art. 1 must register and keep their registration updated with COAF, according to the instructions on its website.

Art. 34. Good‑faith communications made pursuant to art. 11 of Law No. 9,613 of 1998 and related legislation will not give rise to civil or administrative liability.

Art. 35. Companies referred to in art. 1 must comply with requests made by COAF in the periodicity, form and conditions established by it, preserving, as required by law, the confidentiality of the information provided.

Art. 36. For a factoring company that falls into a lower‑size and lower‑volume category, at COAF’s discretion, and whose internal risk assessment shows low ML/TF risk related to its activities, a proportional modulation of AML/TF procedures and internal controls is permitted, provided that, in essence, the duties attributed to the company and its administrators by Law No. 9,613 of 1998, Law No. 13,810 of 8 March 2019 and related legal instruments are observed.

§ 1 The detailed justification referred to in the caput must be documented and approved by the factoring company’s administrators, without prejudice, in any case, to its broad liability as provided in art. 12 of Law No. 9,613 of 1998, even in the absence of proper approval.

§ 2 It is incumbent upon the President of COAF to establish, by a separate act, parameters for the classification into lower‑size and lower‑volume categories referred to in the caput.

§ 3 Factoring companies must documentary‑prove, when requested, the conditions required for the modulation provided for in the caput.

§ 4 The conclusion of the factoring company based on the detailed justification referred to in the caput does not eliminate, should its inconsistency be verified, the broad possibility of liability, as set out in art. 38, for non‑compliance with any of the duties addressed by this Resolution.

Art. 37. The President of COAF is authorized to issue other complementary instructions for the fulfillment of this Resolution, in addition to those he may establish in his own act pursuant to § 2 of art. 36.

Art. 38. Companies referred to in art. 1, as well as their administrators, who fail to comply with any duty established by this Resolution shall be subject to the sanctions provided in art. 12 of Law No. 9,613 of 1998, through an administrative sanctioning process that guarantees the parties the observance of the principles of adversarial proceedings and full defense.

Art. 39. The following Resolutions are revoked, with the entry into force of this Resolution: No. 21, of 20 December 2012, and No. 33, of 6 March 2020, of COAF.

Art. 40. This Resolution enters into force on 1 September 2022.

RICARDO LIÁO

(Official Gazette of 09 August 2022 – pages 119 to 122 – Section 1) *