Resolution No. 20, of August 29, 2012 - Revoked

Published on 17/09/2020 14:39 Modified on 16/12/2020 15:35

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Provides for the procedures to be observed by persons regulated by COAF, in accordance with § 1 of Article 14 of Law No. 9,613, of 1998.

RESOLUTION NO. 20, OF AUGUST 29, 2012.

Provides for the procedures to be observed by persons regulated by COAF, in accordance with § 1 of Article 14 of Law No. 9,613, of 3.3.1998.

THE PRESIDENT OF THE FINANCIAL ACTIVITIES CONTROL COUNCIL – COAF, using the authority granted by item IV of Article 9 of the Statute approved by Decree No. 2,799, of 8.10.1998, makes public that the Plenary of the Council, based on Article 7, items II, V, and VI of said Statute, in a session held on 29.8.2012:

CONSIDERING the competence of COAF to regulate, with respect to the prevention of money laundering and terrorist financing, the sectors provided for in Article 9 of Law No. 9,613, of 3.3.1998, for which there is no own regulatory or supervisory body;

CONSIDERING the need for improvement and modernization of the administrative-regulatory framework complementary to Law No. 9,613, of 3.3.1998;

CONSIDERING the provisions contained in conventions, resolutions, and recommendations produced by international organizations and forums regarding the prevention of money laundering and terrorist financing;

CONSIDERING the Mutual Evaluation Report of Brazil, prepared jointly by the Financial Action Task Force - FATF and the Financial Action Task Force of South America - GAFISUD, and approved in July 2010; and

CONSIDERING that the principles and guidelines for the prevention of money laundering and terrorist financing apply substantially equally to the obligated sectors;

DELIBERATED AND APPROVED the RESOLUTION below, in conformity with the norms contained in Articles 9, 10, 11, and 14, caput and § 1, all of Law No. 9,613, of 3.3.1998.

Section I

Scope

Article 1. This Resolution aims to establish general norms for the prevention of money laundering and terrorist financing, subjecting compliance to:

I – commercial factoring companies in any of their modalities, including commercial factoring (factoring), securitization of assets, titles, or monetary receivables, and affiliated managers;

II - companies that distribute money or any movable or immovable goods, merchandise, services, or grant discounts on their acquisition, through a lottery or similar method;

III – branches or representations of foreign entities that exercise, in Brazil, any of the activities referred to in this article, even if occasionally;

IV - natural or legal persons, national or foreign, operating in Brazil as agents, managers, attorneys, commission agents, or in any other way representing the interests of a foreign entity that exercises any of the activities referred to in this article;

V - natural or legal persons who trade jewelry, stones, and precious metals, art objects, and antiques;

VI - natural or legal persons who trade high-value or luxury goods, intermediate their trade, or exercise activities involving large volumes of cash, including those who trade aircraft, vessels, and motor vehicles or intermediate their trade;

VII - legal persons that provide payment or fund transfer services using electronic, magnetic, or equivalent means, for which there is no own regulatory or supervisory body;

VIII – natural and legal persons not subject to regulation by their own regulatory body who provide, even if occasionally, advisory, consulting, accounting, auditing, advice, or assistance services, of any nature, in operations:

a) purchase and sale of real estate, commercial or industrial establishments, or corporate interests of any nature; b) management of funds, securities, or other assets; c) opening or management of bank, savings, investment, or securities accounts; d) creation, operation, or management of companies of any nature, foundations, trusts, or analogous structures; e) financial, corporate, or real estate; and f) alienation or acquisition of rights related to contracts concerning professional sports or artistic activities;

IX – natural and legal persons who act in the promotion, intermediation, commercialization, agency, or negotiation of transfer rights of athletes, artists, fairs, exhibitions, or similar events; and

X – natural and legal persons who trade high-value goods of rural or animal origin or intermediate their trade.

Sole Paragraph. The persons referred to in this article must observe the provisions of this Resolution in all business and operations they carry out, including those involving:

I - the purchase or sale of other goods or the provision of other services not pertinent nor linked to the main activity developed; and

II – the purchase or sale of movable or immovable goods that constitute their assets.

Section II

Prevention Policy

Article 2. The legal persons referred to in Article 1 must establish and implement a money laundering and terrorist financing prevention policy compatible with their size, which must include procedures aimed at:

I – identification and performing due diligence for the qualification of clients, third-party interveners, and other parties involved in the operations they carry out;

II – obtaining information about the purpose and nature of the business relationship;

III – identifying the ultimate beneficial owner of the operations they carry out;

IV – identifying suspicious operations or proposals for operations;

V – categorizing the operations they carry out and clients into money laundering and terrorist financing risk categories, considering, at a minimum, the following criteria:

a) types of clients, third-party interveners, and other parties involved in the operations they carry out; b) types of products and services traded; c) payment methods used; and d) manner of operation execution; and

VI – periodic verification of the effectiveness of the adopted policy.

§ 1. The policy mentioned in the caput must be explicitly formalized, with approval by the holder of the highest management authority, also including procedures for:

I - selection and training of employees;

II - dissemination of its content to the staff through institutionalized continuous processes;

III - monitoring of activities developed by employees; and

IV - prevention of conflicts between commercial/business interests and money laundering and terrorist financing prevention mechanisms.

§ 2. The provisions of § 1 of this article do not apply to legal persons classified under the Unified Special Regime for Collection of Taxes and Contributions due by Microenterprises and Small Businesses – SIMPLES NACIONAL.

Article 3. The persons referred to in Article 1 must assess the existence of suspicion in proposals and/or operations of their clients, paying special attention to those that, due to their characteristics regarding involved parties, values, manner of execution, complexity, atypicality, instruments used, or lack of economic or legal basis, may constitute an indication of a crime.

Section III

Registry of Clients, Third-Party Interveners, and Other Parties Involved

Article 4. The persons referred to in Article 1 must maintain a registry of their clients, third-party interveners, and other parties involved in the operations they carry out, including representatives and attorneys, regarding whom the following must appear, at a minimum:

I – identification and qualification;

II – information allowing assessment of their economic and financial capacities;

III – the risk category in which they were classified; and

IV – the records and analyses referred to in Articles 5, 6, and 11, as well as the correspondence referred to in Article 12.

Sole Paragraph. An act of the President of COAF will detail compliance with the provisions of this article.

Article 5. The elements contained in the registry must adhere to differentiated levels of detail, proportional to the risk categories in which the client, third-party interveners, and other parties are classified.

§ 1. In high-risk categories or situations designated by an act of the President of COAF, it is required to:

I - adopt additional diligence to obtain and confirm registry information; and

II – initiate, continue, or conclude the operation or client relationship only after explicit authorization recorded by the Board of Directors.

§ 2. The registry must be subject to periodic updates, without prejudice to contextual updates that may be necessary, to ensure constant reliability of information.

§ 3. The persons referred to in Article 1 must adopt additional verification procedures whenever there is doubt regarding the reliability of information contained in the registry or when there is suspicion of the practice of crimes provided for in Law No. 9,613, of 3.3.1998.

Article 6. With the objective of identifying the ultimate beneficial owner of the operations they carry out, the persons referred to in Article 1 must adopt adequate measures to understand the shareholding composition and control structure of corporate clients.

Sole Paragraph. When it is not possible to identify the ultimate beneficial owner, the persons referred to in Article 1 must pay special attention to the operation, evaluating the convenience of carrying it out or establishing the business relationship.

Section IV

Record of Operations

Article 7. The persons referred to in Article 1 must maintain a record of all operations they carry out, which must include:

I – identification of clients, third-party interveners, and other parties involved; and

II – values, dates, and payment methods and forms involved.

Sole Paragraph. An act of the President of COAF will detail compliance with the provisions of this article.

Section V

Communications to COAF

Article 8. The persons referred to in Article 1 must communicate to COAF, within 24 (twenty-four) hours, refraining from informing clients, third-party interveners, and other parties involved, the proposal or execution of operations:

I – considered suspicious due to:

a) the parties, third-party interveners, and other parties involved; b) the values, manner of execution, and payment methods and forms; c) the lack of economic or legal basis; or d) obstacles to accessing relevant information caused by the client, third-party interveners, or other parties involved; or

II - defined as requiring automatic communication in an act of the President of COAF.

Sole Paragraph. The procedures for determining suspicion must be recurrent, including, when necessary, the performance of other diligences beyond those expressly provided for in this Resolution and in acts of the President of COAF.

Article 9. If no operations or proposals referred to in Article 8 are identified during the civil year, the persons referred to in Article 1 must declare such fact to COAF by January 31 of the following year.

Article 10. Communications must be sent via an electronic form available at www.coaf.fazenda.gov.br.

Sole Paragraph. Information provided to COAF will be protected by confidentiality.

Article 11. The persons referred to in Article 1 must maintain a reasoned record of decisions to proceed or not with the communications provided for in Article 8, as well as the analyses referred to in Article 3.

Section VI

Custody and Preservation of Records and Documents

Article 12. The persons referred to in Article 1 must preserve the registries and records referred to in Articles 4, 5, 6, 7, and 11 of this Resolution, as well as printed and electronic correspondence regarding the execution of operations, for at least 5 (five) years, counted:

I - from the termination of the contractual relationship with the client, for registries; and

II - from the conclusion of operations, for respective records and correspondence, and for records provided for in Article 5, § 1, item II, and Article 11, both of this Resolution.

Section VII

Final Provisions

Article 13. The use of registry information and risk analyses existing in databases of public or private entities does not replace or supplement the requirements provided for in Articles 4, 5, 6, and 7, admitting its use, on a complementary basis, to confirm data and information previously collected.

Article 14. The persons referred to in Article 1 must register with COAF, via an electronic form available at http://www.coaf.fazenda.gov.br, keeping their registry constantly updated.

Article 15. Communications made in good faith, as provided for in § 2 of Article 11 of Law No. 9,613, of 3.3.1998, will not entail civil or administrative liability.

Article 16. The persons referred to in Article 1, as well as their administrators, who fail to comply with the obligations of this Resolution are subject to sanctions provided for in Article 12 of Law No. 9,613, of 3.3.1998.

Article 17. The President of COAF is authorized to issue the necessary instructions for compliance with this Resolution.

Sole Paragraph. In issuing instructions, the President of COAF may, considering the specificities of the obligated sectors, exempt them from compliance with obligations established in this Resolution that are incompatible with the type of operation they carry out.

Article 18. This Resolution enters into force on 1.3.2013, when the following COAF Resolutions will be revoked:

I - No. 3, of 2.6.1999, which provides for procedures to be observed by entities that effect, directly or indirectly, distribution of money or any movable or immovable goods, through a lottery or similar method;

II – No. 4, of 2.6.1999, which provides for procedures to be observed by natural or legal persons who trade jewelry, stones, and precious metals;

III – No. 5, of 2.7.1999, which provides for procedures to be observed by legal persons that operate bingo games and/or similar;

IV – No. 8, of 15.9.1999, which provides for procedures to be observed by natural or legal persons who trade art objects and antiques;

V – No. 9, of 5.12.2000, which amends Resolutions No. 3 and No. 5;

VI – No. 10, of 19.11.2001, which provides for procedures to be observed by non-financial legal persons providing money transfer services;

VII – No. 13, of 30.9.2005, which provides for procedures to be observed by commercial or mercantile factoring companies;

VIII – No. 14, of 23.10.2006, which provides for procedures to be observed by legal persons that exercise real estate promotion or purchase and sale of real estate activities; and

IX – No. 18, of 26.8.2009, which provides for procedures to be observed by legal persons that effect, directly or indirectly, distribution of money or any movable or immovable goods through the operation of lotteries provided for in Decree-Law No. 204, of 27.2.1967.

Article 19. This republication renders Resolution No. 20, of 29.2.2012, published in the Official Gazette of the Union, of 5.4.2012, page 24, Section I, without effect.

Brasília, August 29, 2012.

ANTONIO GUSTAVO RODRIGUES

President