Jewels of Arabia for Bolsonaro and Michelle: what the law says – 06/03/2023 – Politics

The case of the alleged gift from Saudi Arabia to former first lady Michelle Bolsonaro faced rules both in the attempt to get the jewels into Brazil and in the interpretation of what is public and what is personal in the collection of a President of the Republic.

First, the government’s alleged resistance to declaring jewelry and watches valued at BRL 16.5 million as a public good directly contradicts the understanding established by the Federal Audit Court since 2016.

On the occasion, the TCU filled a legal vacuum on the subject, which even resulted in the return to the common heritage of the Presidency of about 500 gifts that were in the private collections of Luiz Inácio Lula da Silva (PT) and Dilma Rousseff (PT) .

Documents that were made public in the case of the Saudi jewels showed that advisors from the Presidency and the Ministry of Mines and Energy made generic requests to the Revenue Service, which withheld the jewels, arguing that only after the clearance at customs would there be a definition on whether the material would go to public or private collection of the Presidency.

Law 8.394/1991, of the Fernando Collor de Mello government, deals with the preservation, organization and protection of the private document collections of the Presidents of the Republic. It was regulated by decree 4.344/2002, by Fernando Henrique Cardoso.

“The documents that constitute the private presidential collection are, in their origin, property of the President of the Republic, including for the purposes of inheritance, donation or sale”, states the law.

Although these norms specifically deal with the documentary production of presidents, the lack of any other legal provision led to an article being used for several years as support for the interpretation that gifts received by representatives would only be incorporated into public assets if they were received in a solemnity of exchange of gifts.

This is the point that establishes that “bibliographic and museological documents received in gift exchange ceremonies” are public, not private.

That is, by analogy, it was interpreted that only gifts received in these ceremonies would be obligatorily public.

In 2016, the Federal Court of Auditors concluded a judgment (TCU judgment 2255/2016) that changed this interpretation, based, among others, on the constitutional principle of morality (article 37).

It was reported in this judgment that there was no clear legal provision establishing rules for receiving and holding gifts by agents and that this would be leading to a situation in which they themselves and advisors would be defining, without a clear rule, what at the end of the term would be under public domain and what would be incorporated into private property.

“Imagine the situation of a head of government presenting the president of the Republic of Brazil with a large emerald of inestimable value, or a valuable painting. of the Republic, since he receives them in this public capacity”, writes Minister Wallton Alencar, rapporteur of the case.

The minister highlighted, among several other arguments, the fact that the money to pay for gifts given to foreign authorities comes from public coffers. Therefore, the counterpart, the gifts received, must also be public, with the exception of items for personal use or of a very personal nature.

In this ruling, the TCU identified that, out of 1,073 gifts received from 2002 to 2016, only 15 had been incorporated into public assets. With that, it determined the return of 434 gifts by Luiz Inácio Lula da Silva (2003-2010) and 117 by Dilma Rousseff (2011-2016).

In an action to monitor the determinations of this judgment, dated August 2019, the TCU pointed out that Lula’s representatives had returned to the public sphere 360 ​​of the 434 present, which were packed in the shed of the Metalworkers Union of São Bernardo do Campo.

“Representatives of former president Dilma Vana Rousseff indicated that the goods under her responsibility would be in the shed of the Cooperative of Settled Workers in the Porto Alegre Region, in Eldorado do Sul/RS”, informed the document, adding that 111 of the 117 requested gifts.

In 2020, the case was archived on the grounds that the recommendations of the 2016 judgment were complied with.

In a session on March 1st of this year, the TCU judged a related case and approved judgment 326/2023 directing a delegation of the Bolsonaro government that went to Qatar in 2019 to deliver watches from the brands Hublot and Cartier to the Brazilian public property (worth up to BRL 53,000 each) that they received as a gift.

As in 2016, the court found that receiving gifts is contrary to the principles of morality and reasonableness. Among those who received the designer watches are former ministers Gilson Machado (Tourism) and Ernesto Araújo (Foreign Relations) and federal deputy Osmar Terra (MDB-RS).

entry into Brazil

The second point in which the jewelry case collides with laws and rules is the way in which the Brazilian entourage that went to Saudi Arabia tried to bring them into Brazil.

The Customs Regulation (decree 6.759/2009) and normative instructions from the Federal Revenue do not allow what the military Marcos André dos Santos Soeiro tried to do on October 26, 2021.

The adviser to the then Minister Bento Albuquerque (Minas e Energia) arrived in the country with jewelry and a watch valued at R$16.5 million in his personal luggage, without customs declaration. He ended up stopped at Guarulhos airport and the material was seized.

By law, goods acquired abroad with a value greater than US$ 1,000 (a little over R$ 5,000) must be declared to the Revenue upon entry into Brazil, subject to taxation of 50% on the surplus.

The assertion that the pair of earrings, the ring, the necklace and the watch made with precious stones were not Soeiro’s, but a state gift given by the Saudis to the then first lady Michelle Bolsonaro, led to a different situation, according to with the law and the rules of Revenue.

The material is no longer framed in the concept of common luggage. As described in the Customs Regulations, in article 156, the “traveler cannot declare it as a third party’s own luggage”.

With that, the treatment became the “common import regime”, established in article 161 of the regulation. This categorization “could and should have been adopted by the bearer of the goods”, wrote the Customs Office of Guarulhos to Jair Bolsonaro’s office, in a letter sent later.

With the import regime, government representatives should have sought customs, proved the donation made by the Arab authorities and formulated a declaration of import of the material for the Union’s collection, which does not result in the collection of taxation.

This has never been done, according to the Revenue and members of the Tax Authorities heard by Sheet.

“In the event of a public agent failing to declare the asset as belonging to the Brazilian State, it is possible to regularize the situation, through proof of public ownership and regularization of the customs situation. This did not happen in the case under analysis, even after guidance and clarifications were provided by the Federal Revenue Service to government agencies”, said the Tax Authorities, in a note.

Instead, there were attempts to clear the jewels through “portfolios”, according to the newspaper O Estado de S. Paulo, which revealed the case – such as the shipment to Guarulhos, three days before the end of Jair’s term. Bolsonaro, from the military Jairo Moreira da Silva on a Brazilian Air Force plane to “meet the demands of the President of the Republic in that city”.

The removal of jewelry without formalizing that they would form part of the Union’s assets would only be possible with the payment of a 50% tax and a fine of another 50% for the attempt to evade —that is, practically the R$ 16, 5 million, according to Revenue calculations.

According to tax authorities and specialists interviewed by the Sheetincluding Dão Real Pereira dos Santos, director of International and Inter-union Relations at Sindifisco (National Union of Revenue Tax Auditors), the legal ways to transfer gifts given by foreign authorities to national authorities are different.

The most advisable thing is to ship by carrier, or by the airline itself, as a transport service. The material would then be forwarded to Brazilian customs accompanied by the respective “bill of transport” (Article 40 of the Customs Regulation).

As a result, it would be up to the government to remove the material after meeting certain requirements, including proof that the property will be incorporated into public property.

“Even bringing the jewels himself, he should inform customs that it was not luggage, but a gift. The jewels would remain at customs for up to 90 days, for the customs clearance procedure”, says Dão.

“If the gift was for the government, the government should file an import declaration with a letter or document as an instruction document that demonstrates that it was really a gift. In this case, there are no taxes, as public bodies have immunity.”

If the entourage informed the customs area that the gift was intended for a private collection, of Michelle or Bolsonaro, for example, the import declaration and customs clearance should also be registered.

In this case, however, there would be the collection of various taxes, normal for this type of product, such as Import Tax, IPI, PIS and Cofins.