In a lawsuit sponsored by our law firm, DB Tesser Sociedade de Advogados, the 7th Civil Court of the Judicial Section of São Paulo recognized, in its judgment, the nullity of the administrative tax proceedings that originated the imposition.

Firstly, regarding the goods in question, the application of the penalty of forfeiture was proposed, based on the argument of falsity of the commercial invoice and under-invoicing, which was debated in an action filed before the Federal Court of the Federal District, in which the release of the goods was granted, under the terms of a preliminary injunction, upon provision of security to be deposited in court, in an amount to be determined by the tax authorities.

Because the arbitration was carried out outside the established valuation methods, the amount reached an unrealistic level, preventing the decision from being used and culminating in the assets being disposed of administratively through auction.

As is well known, the application of the penalty of forfeiture eliminates the taxable event for the collection of any tax differences and fines; however, the Tax Authority, even after the penalty was perfected, issued two other Notices of Infraction with the intention of imposing such charges on the taxpayer, which is illegal, among other aspects, because it constitutes a practice of bis in idem.

The ruling acknowledged that the administrative tax proceedings concerned the same taxable events and could not coexist, as this would risk penalizing the plaintiff twice and also causing the defendant's unjust enrichment, since the proceeds from the aforementioned auction revert to public coffers.

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Decision commented by Laura Ivasco, Specialist Lawyer, OAB: 312.237, Graduated in 2010 from Anhanguera University/SP, Area of expertise: Customs Law, Foreign Trade.