Why Asset Tracing & Recovery Are So Difficult In Brazil?
Law nº 9.613/1998 deals with the Crimes
of “laundering” or Concealment of Property, Rights and Values and has
almost 20 years, but just now we hear about money “laundering” and concealment of assets.
In Brazil, we have
what we call a culture of transgression: Individuals and companies transgress the law and
rules of coexistence as a "normal" situation. The transgression of
law is common, widespread and the State and civil society do little. Corruption
is Institutional, institutionalized. Impunity is the rule and punishment is an exception.
Financial crimes, criminals of white collar
and violations of access to information are not violent crimes and integrates the
country's elite, another factor that contributes to impunity.
The culture of
transgression generates legal uncertainty and both hinder the economy and business. The law is
condescending to transgressors and difficult to apply in practice. There is no
guarantee in the fulfilment of contracts. Justice is slow and ineffective. Condescending
criminal laws encourage fraudsters. Fraud and financial crimes are a good deal
either because they are profitable or have no serious criminal consequence.
Brazil has always
been a backward country, from a slave economy in the Modern Age it was the last
western country to abolish it. Pre-capitalist country or from capitalism politically driven by bureaucratic
stratum[1] refusing the state liberal
model. Brazil is a statist model country,
with 50% of its GDP controlled by the state. Hence their privilege islands
surrounded by a sea of poverty, hunger and violence. The burocratic state is a
bureaucratic aristocracy within a capitalist country visible hand of the State.
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That is why the
system of acquisition and Real Estate registry is chaotic and decentralized.
Doesn't matter the centralization to the empowered – many involved in corruption schemes –, which complicates
the search for real estate and fixed assets, favorite Latin Investments. Causes
are due to historical reasons. Rio de Janeiro (Brazil) was made the seat of the
United Kingdom of Portugal, Brazil and Algarves in the early 19th
century, King Dom João VI created
registries to support the Government and his courtiers. In addition to
monitoring and collection of taxes in Brazil, "the principal role of registries is to serve as a source of income for
friends of the King"[2].
John VI of Portugal
and Carlota Joaquina of Spain (Manuel Dias de Oliveira, 1815)
Portugal,
Brazil and Algarve’s King was responsible for the patrimonial, giant and
bucrocratic heritage of the Brazilian State.
The registries are
primary sources of information assets, and main, from the time of purchase of goods
and of its bookeeping. In this phase, purchasers are interested in making the
record of public deeds the exact
quality and quantity of the goods, rights and values acquired.
Corruption and
complex tax laws encourage purchasers to omit these same goods from their Income Statements, IRPF (Personal Income
Tax) and IRPJ (Corporation Tax Number), secondary
sources of assets information used for tax purposes or taxation systems.
This data can be accessed by judges through the INFO-Jud system. But, besides
being the secondary sources of information
of assets, they are inaccurate, with serious omissions. Another idiosyncrasy of
Brazil: Registries have been created allegedly for giving publicity to legal
transactions, but in full Digital Age, your information is not free or accessed
through the Internet.
Notaries centralization and universalization
information services - especially the Real Estate Registry offices - is of no
interest to the own State groups because it can erode a whole archaic economic
system based on the degree in law dictatorship[3]. The information of assets from Brazil remain a) state-bureaucratic;
b) decentralised/chaotic; and c) without easy access over the Internet.
On August 9 of 2016,
the National Justice Council (“CNJ”) promised to "integrate the Real
Estate registry offices" through the Real Estate Electronic
registration system (SREI). But it does not work. The "ASSET SEARCHES”
– It is the search by CPF (Individual Tax
Number) or CNPJ (National Register of Legal Entity) to detect property holdings
and other real rights registered from the researched, in a shared base by the
registries of Real Estate Records" is not centered, nor even could,
since many Real Estate Registry offices do not even have digital services nor
contact sites.
The system offered by
the CNJ is nothing less than a website with a list of sites of the few real
estate Registry offices with digital services that allow queries through the
Internet. It is an incomplete and unintegrated list where the consultant would
have to consult (and pay) for each one of the local services selected. Without
integration, the querent doesn't even know where to start if not through the city
offices where the debtor has his residence or business. But who invests only
close to home or Office?
Apart from that,
numerous other businesses escape the control and sanitary supervision of asset
information sources because they were concluded in private deeds and documents
commonly known as “off-the-records”. Only more conflicts, debts or tax
exemptions make these contracts "emerge".
In Short
Asset searches & investigations in Brazil are not for amateurs.
Through the
Judiciary, the Brazilian State holds primary
sources of asset information separated into divisions, zones of influence
("notaries") and then this
same State Judge tries to locate financial assets through tardy access on
secondary sources of proprietary information that the State itself encourages
omissions because of extortionate taxes ("Income Statements").
The Consequences
Companies carry out
Compliance & Corporate Security Programs because they know they cannot
depend on the Government on the repression or in the investigation of corporate
fraud. The companies are unlikely to recover money or subtracted information,
which can scare shareholders. Control
expenses and selection increase. Corrupt employees or opportunistic fraudsters
rely on the ineffectiveness of the police and the Judiciary, either by excess
of investigations or complacency with dishonest citizens. Criminal lawyers
require robust evidence for the conviction of their clients.
Want to find out the debitor´s assets? Try Intelligence services!
www.montaxbrasil.com.br Whatsapp +55 (21) 99682-0489 E-mail montax@montaxbrasil.com.br
Company with 10 years - Professionals with 20 years of experience – We serve all over Brazil!
Search for assets • Personal and assets location • Asset recovery strategies • Search for evidence of crimes
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Fraudsters "pulverize"
the stolen money in corporate/CNPJ and names/CPF of "straw men" to
not leave any trace of the crimes and return the money. Professionals of compliance and risk mitigation of the
corporations were not trained to "tell the story at the end":
Discover the Actors (individuals or organizations) used in the “laundering” or concealment of assets, rights
and values that were stolen.
Banks, financial
institutions and other companies realized that the identification and recovery
of the values, as well as to provide useful evidence in the conviction of the
thieves, discourages fraud in that corporation where criminals will know
there's a culture of fraud prevention with strict punishment for them.
Mission: Impossible. It
is not easy to perform asset searches & investigations in Brazil.
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[1] "The
bureaucratic
stratum commands the civil and military branch of the administration and
from this base, with its own equipment, invades and directs the economic,
political and financial sphere. In the economic field, the measures put into
practice, which go beyond the formal regulation of the liberal ideology, range
from financial and monetary prescriptions to the direct management of
companies, through the regime of state concessions and ordinations on labor.
Acting directly or through incentives will be techniques developed within a
single scope. In its relations with society, the director provides about the
opportunities for political ascension, sometimes dispensing prestige, or
repressing seditious disorders, which seek to break the control scheme" (Free translate by FAORO, Raymundo - The
Owners of Power: The Workings of Brazilian Political Patronage - vol. I e II., Ed. Globo, 10ª Edição, 2000, p. 740).
[3] GARSCHAGEN, Bruno - Stop Believing in
Government: Why do Brazilians do not trust Politicians but Love the State - Record,
2015).
ABOUT THE AUTHOR
Company director of Montax Intelligence, Marcelo de Montalvão helps heads of legal departments & compliance officers in corporate investigations, investigative due diligences and financial asset searches.
Author of Inteligência & Indústria - Espionagem e Contraespionagem Corporativa (Intelligence & Industry - Corporate Spionage and Counter Spionage), a private Intelligence guide.
Listen to Marcelo on YouTube
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