“… To justify the retention of the goods, in addition to the justification provided at the time the inspection commencement report was drawn up, as argued by the Petitioner, the authority should, in the information provided in these proceedings, demonstrate concretely which facts fall under the hypothesis foreseen in the legal norm and which are effectively the indications that led to the application of this special inspection procedure…”

Unfortunately, this is a very common situation in the daily lives of taxpayers involved in foreign trade, who end up suffering the high burden of going through a Gray Channel procedure, because, as is known, in addition to being the most time-consuming, it is certainly the most complex of the four existing inspection channels (Green, Yellow, Red, and Gray). In the vast majority of cases of parameterization for the Gray Channel, the Tax Authority simply points to the existence of mere indications, without, however, demonstrating the real existence of motivation, relying only on legislation, disregarding or rather disrespecting the principles of reasonableness and proportionality. 

APPEAL/MANDATORY REVIEW No. 0021553-34.2011.4.03.6100/SP 2011.61.00.021553-2/SP

Decision commented by Michel Pereira,  Lawyer, graduated in Law in2009 by FMU/SP. Areas of Expertise: Customs Law, Tax Law, and Corporate Law, OAB (Brazilian Bar Association):  295.435 .