DECREE NO 4,489, DE November 28, 2002

Regulation the art. 5º of Supplementary Act No. 105 of January 10, 2001, in respect of the provision of information to the Office of the Federal Revenue Office of the Ministry of Finance, financial institutions and entities with them equal, relating to operations financial effected by the users of their services.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution conferring you the art. 84, inciso IV, of the Constitution, and in view of the provisions of art. 5º of Supplementary Law No. 105 of January 10, 2001,

D E C R E T A:

Art. 1º The financial institutions, thus considered or similar in accordance with § § 1º and 2º of the art. 1º of the Supplementary Act No. 105 of January 10, 2001, shall provide the Office of the Federal Revenue Office of the Ministry of Finance information on the financial operations effected by the users of their services, without prejudice to the provisions of the art. 6º of the said Supplementary Law.

Art. 2º The information that it treats this Decree, concerning the financial operations described in § 1º of the art. 5º of the Supplementary Act No. 105, 2001, shall be provided, continuously, in digital archives, in accordance with the specifications defined by the Office of the Federal Revenue Office, and shall be restricted to information relating to the identification of the holders of the operations and with the monthly global amounts, relative to each user, vetoed the insertion of any element that allows to identify their origin or the nature of the expended expended.

§ 1º In the information referred to in this article, do not include financial operations carried out by the direct and indirect administration of the Union, the States, the Federal District and the Municipalities.

§ 2º Financial institutions should retain all accounting and fiscal documents, related to the informed operations, while pertaining the right of Public Finance to constitute the tax credits of them arising.

§ 3º The identification of the holders of the operations or users of the services will be carried out by the registration number in the Physical Person Cadastro (CPF) or the National Cadastro of the Legal Person (CNPJ) and by the number or any other existing identification element in the financial institution.

§ 4º Should the operation performed by the user not be recorded in current account, the institution financial you must inform the existing registration or control number.

Art. 3º For the purposes of this Decree, it is considered to be a monthly global amount of movement:

I-in the spot and time deposits, including in savings account, the sum of the launches to credit logged in the month ;

II-in payments made in current currency or cheque, the sum of the debit launches linked to such payments in the month ;

III-in the emissions of credit orders or similar documents, the sum of the launches to debit linked to such emissions in the month ;

IV-in the bailouts in account of spot and time deposit, inclusive of savings, the somatorial of the debit launches linked to such bailouts in the month ;

V-in mutual contracts and in the discount operations of duplicates, promissory notes or other credit securities, the sum of the values launched the credit and the sum of values released the debit, in the month, on each account that records the user's operations ;

VI-in the acquisitions and sales of fixed-income or variable securities:

a) in operations in the spot market, the sum of the acquisitions and the sum of sales realized the month ;

b) in operation in the options market, the sum of the awards received and the sum of the awards paid in the month, informed in a segregated manner, relating to all options contracts, including those of flexible options ;

c) in futures market operations, the sum of the daily adjustments occurring in the month, relative to all user contracts ;

d) in swap operations, the sum of the payments and the sum of the receipts occurred in the month, informed in a segregated manner, relating to all user contracts ;

VII-in the applications in investment funds, the sum of the launches of realized applications in the month, individualized per fund ;

VIII-in foreign currency acquisitions, the somber of purchases made in the month, in currency national, by the user ;

IX-in foreign currency conversions in national currency, the sum of sales taken in the month, in national currency, by the user ;

X-in foreign currency transfers and other values for the exterior, the somatorium, in currency national, of the values transferred in the month by the user, contemplating all modalities, independent of the foreign exchange market in which they operate ;

XI-in the acquisitions or sales of gold, financial asset, the sum of the acquisitions and the somatorial of the sales held in the month by the user ;

XII-in operations with credit card, the sum of payments made by the holders of the cards and the sum of the repasses made to the accredited establishments, in the month ;

XIII-in the operations of market renting, the sum of payments made by the tenants in the month, referring to each contract.

§ 1º The transfers of values to the outside, when arising from credit releases effected by the depositary bank on accounts titled by residents or domiciled abroad, should be informed in a segregated manner of the other modalities, in accordance with the inciso X of the caput, except when the proceeds from sale of currency foreign or directly from another account of the same species.

§ 2º The information relating to credit cards shall be submitted, pursuant to the inciso XII, of individualized form per card issued to the user.

Art. 4º For the fulfillment of the provisions of the art. 3, financial institutions will be able to disregard the information regarding each financial operation modality in which the global amount moved in the month is lower than the following limits:

I-for physical persons, R$ 5,000.00 (five thousand reais) ;

II-for legal persons, R$ 10,000.00 (ten thousand reais).

Art. 5º The Registry of the Federal Revenue Can:

I-alter the boundaries of which it treats art. 4 ;

II-instituting semi-annual and annual limits ;

III-instituting limits on the set of modalities of operations ;

IV-in the case of inciso II, establish the hypotheses in which, in which there is a modality of operation financial in which the busy global amount in the period is higher than the established limits, the financial institution should provide all information relating to the other modalities of operations of that holder or user of its services, even though the busy global amounts of each operation are below the established limits.

Single Paragraph. The new limits, set out in the manner provided for in this article, are to be observed from 1º January of the year following the edition of the said act, with respect to the obligation to provide the information, regardless of the date of accomplishment of financial operations.

Art. 6º Received the information that it treats this Decree, if detected hints of failures, incorrections or omissions, or of the commission of fiscal illicit, the ascertainment of the facts will give by:

I-requisition of the necessary elements and documents ;

II-fiscal procedure.

Art. 7º The Office of the Federal Revenue Office shall, in the form of the legislation applicable to the matter, be kept confidential of the information received pursuant to this Decree, provided its use to establish tax procedure for verifiability to verify the existence of tax credit relative to taxes and contributions under his administration.

Art. 8º The lack of provision of the information that it treats this Decree or its presentation inexact or incomplete subject to the legal person to the penalties provided for in art. 33 of Provisional Measure No. 66 of August 29, 2002.

Single Paragraph. Whoever omits, unjustifiably retardant or falsely preside over the Office of the Federal Revenue Office the information referred to this Decree will be subject, too, to the sanctions that it treats art. 10, caput, of Supplementary Act No. 105, 2001, without prejudice to the liable penalties under the tax or disciplinary legislation, as the case is.

Art. 9º The server that discloses, reveal or facilitate the disclosure or disclosure of any information that it treats this Decree, constant of computerized systems, document files or autos of lawsuits protected by tax secrecy, with infringement to the willing on art. 198 of Law No. 5,172 of October 25, 1966 (National Tax Code) or at art. 116, inciso VIII, of Law No. 8,112 of December 11, 1990, shall be subject to the penalty of resignation, provided for in art. 132, inciso IX, of the cited Law No. 8,112 of 1990, without prejudice to civil and criminal penalties.

Art. 10. The public servant who uses or makes it possible to use any information obtained under this Decree, in purpose or hypothesis amused by the provision under law, regulation or administrative act, shall be held to account administratively for disfulfilling the functional duty of observing legal or regulatory standards, of which it treats art. 116, inciso III, of Law No. 8,112, 1990, if the fact does not set more serious infraction, without prejudice to their accountability in own regressive action and liable criminal liability.

Art. 11. The server that allows or facilitates, upon attribution, supply or loan of password or otherwise, the access of unauthorized persons to information systems, database, files, or the autos of processes containing information mentioned in this Decree, will be held administratively, under the specific legislation, without prejudice to the civil and criminal penalties that are liable.

Single Paragraph. The provisions of this article also apply in the event that the server misuses, improperly, of restricted access.

Art. 12. The taxable person who considers himself impaired for misuse of the information obtained by the tax administration, pursuant to this Decree, or by abuse of the requesting authority, may direct representation to the Correged-General of the Secretary of the Federal Revenue Office, with views to the ascertainment of the fact and, if applicable, the application of liable penalties to the server responsible for the infraction.

§ 1º When the narrated fact does not set obvious disciplinary or illicit criminal infringement, the representation will be archived, for lack of object.

§ 2º The provisions of § 1º applies, too, to the hypothesis that it treats art. 12 of Decree No 3,724 of January 10, 2001.

Art. 13. The Office of the Federal Revenue Office shall 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.

Brasilia, November 28, 2002 ; 181º of the Independence and 114º of the Republic.

FERNANDO HENRIQUE CARDOSO

Pedro Malan