In a recent decision, issued on June 11, 2021, in the proceedings of the writ of mandamus before the 12th Federal Civil Court of São Paulo, the Judiciary granted the requested preliminary injunction to reinstate the modality in which the Petitioner company was authorized before the adoption of an arbitrary measure by the Respondent Authority, thus aiming at the regular continuation of its operations in foreign trade.
The company sought judicial relief due to the coercive act committed by the Delegate of the Foreign Trade Inspection Office of the Federal Revenue Service of Brazil in São Paulo (DECEX/SPO), whose purpose was to order the Respondent to immediately enable the Petitioner in the Integrated Foreign Trade System (Siscomex) in the Unlimited modality, in accordance with art. 16, III, of the Normative Instruction of the Federal Revenue Service of Brazil No. 1,603/2015, in force at the time the special procedure was initiated – a regulation currently revoked by Normative Instruction RFB No. 1,984, of October 27, 2020.
The Petitioner demonstrated that the basis for the challenged act was the fact that the Respondent analyzed only the company's financial activity for a single month, whose financial resources did not reach the minimum amount capable of satisfying the requirements of the unlimited modality, proving, in due course, that its economic capacity should not be measured by a static analysis based on this period in isolation, at the discretion of the Respondent Authority.
Throughout the legal proceedings, and after analyzing other elements in numerous attached documents, it became evident that the company had the full financial capacity to operate in foreign trade. Comparing the months subsequent to the one solely verified by the Respondent Authority, a balance higher than that indicated in the tax audit was found, which would be sufficient to qualify it for the unlimited modality. For this reason, the injunction requested by the Petitioner was granted as requested.
Thus, the indispensability of a specialized team to provide the necessary legal support to foreign trade operators is demonstrated, since, often, although they carry out their commercial activities in accordance with the provisions of the current legal system, they end up being surprised by arbitrary and excessive conduct, which can ultimately make the regular progress of their tasks unfeasible.
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Decision commented on by Gian Lucca Jorri, Lawyer, graduated in Law in 2016 from the Catholic University of Santos / SP, specialist in Customs and Tax Law.
OAB/SP No. 404.759
