Os crimes de sonegação fiscal como delitos antecedentes à lavagem de dinheiro.

Abstract

The 1988 Vienna Convention pioneered worldwide the legislations oriented to combat money laundering. At that time, however, the money laundering criminalization was restricted to goods and values deriving from drug traffic. As from the referred Convention, several countries issued laws following the same restricted spectrum, denominated first generation legislations. Subsequently, legislations addressing the burglary of goods have developed, contemplating other antecedent crimes, other than the illicit trade of drugs. Notwithstanding broadened, the list of antecedent crimes remained restrictive, specifying, numerus clausus, the offenses from which could be originated goods and values to be laundered. This is what has been referred to as second generation legislation. Following such pattern, Law nº 9.613/98 was enacted, the first one in Brazil focusing on the combat of money laundering, bringing, as per its Article 1, the restrictive list of 8 (eight) antecedent crimes, among which tax evasion is not featured. In 2012, Law nº 12.683 implemented in Brazil the incorporated third generation legislation tendency and eliminated the restrictive list of antecedent crimes previously provided by Law 9.613 and granted that any criminal infractions may be considered an antecedent crime to the money laundering. As from this amendment to the previous wording, there is the possibility of, a priori and in abstract, tax offenses be considered as money laundering antecedent crimes. This study proposes a bibliographic and documental research with the aim of analyzing whether, from a dogmatic and criminal policy standpoint, the referred abstract possibility is confirmed, demonstrating compatible or not the ancillary nature link between the two crimes. The hypothesis initially admitted was that it would not be possible the characterization of the mentioned link, which was not confirmed in the course of the current research. The main conclusion informs the possibility of the tax offenses be regarded as underlying crimes to money laundering, provided that, in Brazil, through legislative amendment, it would be admitted solely for the cases of organized crime or continuous and professional crime-committing by an individual. The proposed study is pertinent and convenient, considering the expansion scenario of the criminal law, notably the economic nature related, in which it is sought a criminal liability increasingly anticipated and worsened, at times breaking up scientific dogmatic traditions. Considering the exiguity of the national case law and legal doctrine related to the subject, this research aims to collaborate with the development of the discussion and attainable case law orientation alignment.