P&B Compliance Analyst Lívia Lunardi wrote an article that brings us an analysis of sectors sensitive to money laundering, such as the art market. This shows the importance of following the obligations stipulated by the Instituto do Patrimônio Histórico e Artístico Nacional (IPHAN), which regulates Compliance requirements in the art market. In view of this, it will be crucial to register art dealers in the National Registry of Antiquities and Works of Art (CNART), as well as communicate to the Financial Activities Control Council (COAF) if there are suspicious circumstances of money laundering.
According to Bottini ¹, in contemporary times, there is a loss of state centrality in the prevention of the crime of money laundering. Thus, it is up to those who work in sectors sensitive to money laundering to comply with the rules and obligations of Compliance. In this sense, the art market, as well as other sensitive sectors, is subject to the obligations to prevent money laundering established in Law No. 9,613/1998 ², whose non-compliance can lead to administrative or even criminal sanctions.
Ordinance No. 80/2017 and No. 396/2016 of the Instituto do Patrimônio Histórico e Artístico Nacional (IPHAN) regulate compliance obligations in the art market. Among these obligations, it is important to mention that individuals and legal entities that sell art objects must register with the National Registry of Dealers of Antiquities and Works of Art (CNART) and keep customer data up to date.
In addition, IPHAN also establishes the obligation to register operations, that is: each commercial operation carried out by the individual or legal entity that sells art objects must be registered in an internal system, in order to identify and detail the sale of the work of art. art. This record of operations is essential for complying with the duty to report suspicious circumstances of money laundering to the Financial Activities Control Council (COAF).
Therefore, the art market is obliged to adopt Compliance procedures to prevent money laundering. In this sense, both COAF and IPHAN establish the need to adopt a Money Laundering Prevention Program by the individual or legal entity that sells works of art, with the following requirements: (i) presence of identification controls for the customers and trading records; (ii) structuring mandatory communications to IPHAN and COAF; (iii) elaboration of mandatory internal policies; and (iv) inclusion of training for those responsible for negotiating works of art and antiques. In view of this, supervisory bodies assess the suitability of all those who sell works of art to Compliance rules, especially if they are in harmony with money laundering crime prevention practices.
¹ BADARÓ, Gustavo Henrique; BOTTINI, Pierpaolo Cruz. Money laundering: criminal aspects and criminal procedure; comments on Law 9,613/1998, with amendments to Law 12,683/2012. 4th ed., rev. current and extended, São Paulo, Thomson Reuters, Brazil, 2019.
² Duties of compliance are imposed on the art market, according to art. 9, XI of the sole paragraph of Law 9.613/1998.
Lívia Lunardi Fernandes, Intern at P&B Compliance and undergraduate student at the University of São Paulo Law School.
