Certain blocking of cryptography by the State Justice

Direct blocking of crypto in Exchanges in Brazil

First instance decisions, in counties of the state of São Paulo, resolved requests about the direct blocking of crypto in Exchanges in Brazil, a legal entity that offers services associated with operations carried out with crypto, such as intermediation, negotiation or custody.

In the first factual situation, it is a compliance with sentence, which is pending in the 1st Civil Court of São Paulo / SP, related to an eviction action for non-payment, deemed valid to declare the lease terminated, ratify the injunction that decreed eviction and order the payment of rent and other contractual charges.

In compliance with the decision, a decision, published in July 2020, determined that the IRS should inform the existence of crypto assets owned by the executed party, detailing the amounts and presenting the respective statements. Subsequently, in a decision, published in early October 2020, the request to block the executed party’s cryptography was granted, through SisbaJud, recognizing that “the new system allows the blocking of cryptocurrencies in the custody of certain brokers ”.

SisbaJud, in operation since September 2020, is the new electronic platform for tracking and blocking debtors’ assets with judicially recognized debts. It was developed with the objective of implementing automation and integration measures to the PJe, allowing, among other features, the sending of court orders to block cash in current accounts and securities, with the forecast that the system will be able to meet the demand blocking cryptocurrencies.

The other specific case concerns an Enforcement of Extrajudicial Title, pending in the first instance of a district located in the state of São Paulo, in which the executing party pleaded the issuance of a judicial official letter for existing Crypto Exchanges in the country, in order to that the seizure of the amount corresponding to bitcoin, mentioned in the tax return of the executed party, be determined.

The decision, published in September 2020, recognized the possibility that crypto assets will be pledged in court, on the grounds that they are immaterial assets with equity content. However, the pledge was dismissed, as the declaration presented was for the 2018 financial year. However, it determined the dispatch of letters to the Crypto Exchanges, so that they inform the quantity and values ​​of any bitcoins belonging to the executed party, the executing party must inform their names and addresses.

It is worth mentioning that Normative Instruction / RFB nº 1888/2019 regulated the obligation to provide information related to operations carried out with crypto to the RFB Special Secretariat, such as buying and selling, exchanging, donating, transferring and withdrawing cryptocurrencies from Exchange, temporary assignment and other transactions involving transfer.

Thus, they were obliged to provide information, such as, for example, date, holders, value, quantity of crypto traded, among others, the crypto exchange domiciled for tax purposes in Brazil, as well as individuals or legal entities, residents or domiciled. in Brazil, when transactions are carried out on Exchange domiciled abroad or are not carried out on Exchange.

Although the legal nature of cryptography is discussed, in the perspective of the STJ’s position that “cryptocurrency, until then, is not considered as currency or security” (CC 161.123 / SP), it is essential to monitor the position of the Judiciary regarding court pledge orders involving cryptography and the interpretation given to the order stipulated by Law No. 6,830 / 1980.

By: Wilson Sales Belchior