In a recent decision issued on February 2, 2021, by the 19th Federal Civil Court of São Paulo, in proceedings before the Regional Federal Court of the 3rd Region, a preliminary injunction was granted in response to a request from a company whose commercial activity was interrupted due to the suspension of its registration in the Integrated Foreign Trade System – SISCOMEX.
The company sought a court order to compel the Tax Authority to grant it reinstatement in the SISCOMEX system under the Limited Liability modality, as stipulated in Article 16, item II, of Brazilian Federal Revenue Service Normative Instruction No. 1,984/2020, thus allowing it to remain active and enabling it to carry out new procedures for the nationalization or return of goods located in national territory to their origin.
This demand arose because, after being subjected to an official review, the Tax Authority found that the company had sufficient financial capacity to qualify for the Express modality – which was in effect at the time, as provided for in RFB Normative Instruction No. 1,603/2015; however, it decided to suspend the company's authorization without allowing its re-enrollment, which, consequently, goes against the current legal framework.
RFB Normative Instruction 1.984/2020
Art. 29. If the declarant of goods is authorized under the Limited modality, an applicant linked to him may request, through the Habilita system, a review of the financial capacity estimate for the purpose of reclassification under another authorization modality or operating limit.
§ 1. The estimate of financial capacity will be recalculated based on information available in the RFB's computerized systems, and the declarant of goods will be reclassified, if applicable, to the appropriate authorization category and operating limit.
§ 2. The reclassification referred to in § 1 may also occur for a type of qualification or limit of operations lower than those in effect at the time of the request for revision of the estimate.
Evidently, due to the current state of public calamity resulting from the spread of Covid-19, the company has suffered a significant reduction in its cash flow, undergoing official reviews to assess its eligibility to operate in Foreign Trade. It is well known that, until then, although it had full capacity to operate under the Unlimited modality, its authorization was suspended when, in fact, it should at least have been reclassified to a different modality than the one initially granted.
Even aware of the company's situation, the Tax Authority saw fit to disregard the requests for reconsideration submitted by the company and, nevertheless, maintained the suspension to disable it, without, however, reclassifying it into a suitable sub-category.
Therefore, legal team support is essential to prevent foreign trade operators from being subjected to exceptional procedures, since the Tax Authority often uses tools not provided for in the current legal system to hinder the continuation of commercial activities undertaken by various companies in the private sector, becoming an obstacle to free enterprise and, therefore, to the livelihood of those who depend on its essential nature.
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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
