Decree No. 4489, of 28 NOVEMBER 2002 Regulating the art. 5 of complementary law No. 105 of 10 January 2001, regarding the provision of information to the internal revenue service of the Ministry of finance, financial institutions and entities they regarded as relating to financial transactions made by users of its services.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 84, section IV, of the Constitution, and in view of the provisions of art. 5 of complementary law No. 105 of 10 January 2001, D and C R E T a: Art. 1st financial institutions, so considered or equivalent pursuant to §§ 1 and 2 of article. 1 of complementary law No. 105 of 10 January 2001, should provide the internal revenue service of the Ministry of finance information about financial transactions made by users of its services, without prejudice to art. 6 of the Act.
Art. 2 the information referred to in this Decree, concerning financial operations described in § 1 of art. 5 of complementary law No. 105 of 2001, will be supplied, continuously, in digital files, according to the specifications defined by the internal revenue service, and shall be restricted to reports relating to the identification of holders of operations and with the global amounts monthly moved, for each user, prohibited the insertion of any element enabling the identification of its origin or the nature of the expenses incurred.
(1) the information referred to in this article, do not include financial transactions carried out by the direct and indirect administration of the Union, the States, the Federal District and the Municipalities.
(2) financial institutions should preserve all accounting documents and tax related to informed, while operations continue right to the Exchequer constitute the tax credits arising therefrom.
§ 3 the identification of holders of operations or the users of the services will be made by entry number in the register of Individuals (CPF) or the national registry of legal entities (CNPJ) and the number or any other identification particulars on the financial institution.
paragraph 4 If the operation performed by the user is not registered in the current account, the financial institution must inform the registry number or existing control.
Art. 3 for the purposes of this Decree, it is considered total monthly busy: I-in demand deposits and time deposits, including savings account, the sum of credit entries made in the month;
II-in payments made in cash or by cheque, the sum of the debit entries linked to such payments in the month;
III-in emissions credit orders or similar documents, the sum of the debit entries linked to these emissions in the month;
IV-in redemptions in deposit account spot and forward, including savings, the sum of the debit entries linked to such redemptions in the month;
V-mutual agreements and operations off of duplicates, promissory notes or other securities, the sum of the values released on credit and the sum of values in the month debit launched in each account to register user operations;
I saw the acquisitions and sales of fixed or variable income securities: a) in operations in the spot market, the sum of the acquisitions and the sum of the month sales;
b) in operations in the options market, the sum of the awards and the sum of the premiums paid in the month, informed so segregated, for all contracts, including flexible options;
c) in operations in the futures market, the sum of daily adjustments that occurred in the month, relating to all the contracts of the user;
d) in swap operations, the sum for payments and the sum of the receipts in the month, informed so segregated, relating to all the contracts of the user;
VII-in applications in investment funds, the sum of releases of applications made in the month, individualized by Fund;
VIII-the purchase of foreign currency, the sum of the purchases in the month, in national currency, by the user;
IX-in conversions of foreign currency in national currency, the sum of sales in the month, in national currency, by the user;
X-transfers of foreign currency and other values to the outside, the sum in national currency, of amounts transferred in the month by the user, covering all disciplines, regardless of the exchange market in which they operate;
XI-acquisitions or sales of gold, financial asset, the sum of the acquisitions and the sum of the sales in the month, by the user;
XII-credit card operations, the sum of payments made by the cardholders and the sum of the transfers made to establishments accredited, in month;
XIII-leasing operations, the sum of payments made by the tenant on month, relating to each contract.
(1) shipments of values abroad, when arising from releases made by depositary bank credit to accounts kept by resident or domiciled abroad, should be informed of the modalities, segregated form in accordance with section X of the caput, except when the features come from sales of foreign currency or directly from another account of the same species.
(2) information concerning credit cards shall be submitted, in accordance with clause XII, individually per card issued to the user.
Art. 4 For the compliance with the provisions of art. 3, financial institutions may disregard the information relating to each type of financial transaction in which the total amount is less than the bustling in the month following limits: I-for individuals, R$ 5000.00 (5000);
II-for legal entities, R$ 10000.00 (10000).
Art. 5 the internal revenue service may: I-change the boundaries of the art. 4;
II-to set up half-yearly and annual limits;
III-to establish limits for the set of operations;
IV. in the case of item II, establish the hypotheses in which there is a financial operation mode in which the total moved in the period exceeds the limits, the financial institution must provide all information relating to the other modalities of operations that holder or user of its services, although the overall amounts moved from each operation are below the limits established.
Sole paragraph. The new limits, established as provided for in this article shall be observed from January 1 of the year following the publication of the said Act, concerning the obligation to provide the information, regardless of the date of completion of financial transactions.
Art. 6 Received the information referred to in this Decree, if detected evidence of failures, inaccuracies or omissions or Commission of unlawful tax, the determination of the facts shall be subject to: (I) request from the elements and the necessary documents;
Art. 7 the internal revenue service safeguard, in accordance with the law applicable to the subject, the confidentiality of the information received in accordance with this Decree, provided their use to establish fiscal procedure aimed at verifying the existence of tax credit in relation to taxes and contributions under its administration.
Art. 8. The lack of provision of the information referred to in this decree or submission of inaccurate or incomplete form subject to a legal entity to penalties provided for in art. 33 of the provisional measure no. 66, of 29 August 2002.
Sole paragraph. Who omit, unjustifiably delaying or provide falsely to the internal revenue service the information referred to in this Decree shall be subject the sanctions contemplated in art. 10, caput, of complementary law No. 105 of 2001, without prejudice to the penalties applicable under the tax laws or disciplinary action, as appropriate.
Art. 9 the server to disclose, reveal or facilitate the dissemination or disclosure of any information referred to in this Decree, contained in computerized systems, document files, or record of proceedings protected by tax confidentiality, with infringement of the provisions of art. 198 of Act No. 5172, of 25 October 1966 (national tax code) or in art. 116, item VIII of law No. 8112 of 11 December 1990, shall be subject to the penalty of dismissal provided for in art. 132, section IX, of the aforementioned Act No. 8112 of 1990, without prejudice to the civil and criminal penalties applicable.
Art. 10. The public server that use or enable the use of any information obtained under this Decree, in purpose or hypothesis different from provided for in law, regulation or administrative act, will be held accountable for breach of duty functional administratively to observe legal or regulatory standards, which deals with the art. 116, paragraph III, of law No. 8112 of 1990, if the fact does not configure more serious infraction, without prejudice to their accountability in action down own and criminal liability applicable.
Art. 11. The server which enable or facilitate, by assignment, supply or loan of password or otherwise unauthorized access to information systems, database, files or records of processes that contain information referred to in this Decree, will be held accountable administratively, under the specific legislation, without prejudice to the civil and criminal penalties applicable.
Sole paragraph. The provisions of this article shall also apply in the case of the server used, wrongly, of restricted access.
Art. 12. The taxable person be considered harmed by misuse of the information obtained by the tax authorities, in accordance with this Decree, or by abuse of authority supplicant, you can direct the Corregidor General of representation the internal revenue service, with a view to determination of that fact and, where appropriate, the application of appropriate penalties to the server responsible for the infraction.
(1) When the fact narrated not set clear disciplinary infraction or illicit, criminal impersonation will be filed, for lack of object.
(2) the provisions of paragraph 1 shall apply also to the hypothesis contemplated in art. 12 of Decree No. 3724, of 10 January 2001.
Art. 13. The secretariat of Federal revenue will edit the instructions that are necessary for the implementation of the provisions of this Decree.
Art. 14. This Decree shall enter into force on the date of its publication.
Brasília, 28 November 2002; 181 of independence and 114 of the Republic.
FERNANDO HENRIQUE CARDOSO, Pedro Malan