Article 689. The penalty of forfeiture of goods shall apply in the following cases, as they constitute damage to the Treasury (Decree-Law No. 37 of 1966, art. 105; and Decree-Law No. 1,455 of 1976, Article 23, heading e § 1º, this with the wording given by Law no 10.637, of 2002, art. 59):
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XII – foreign national, arriving in the country with a false declaration of contents;
However, this sanction necessarily requires the Tax Authorities to prove the existence of intent on the part of the importer, that is, the deliberate intention to defraud the Tax Authorities, reducing their tax revenue, which is not observed in most cases.
In this regard, the Judiciary has already expressed its opinion:
Customs. PENALTY OF FORFEITURE. False declaration of contents. Absence of intent to evade customs inspection. Penalty of forfeiture dismissed. Sentence upheld. Official appeal denied.
1. The petitioner informed the customs authority that the vessel held 297 full cargo units and 2 empty units, all awaiting unloading. However, inspections verified that there were a total of 299 cargo units, of which 17 were irregular. Of these, 15 were found empty and 2 full, one of which is the subject of this mandamus.
2. However, in this case, the physical inspection of the containers occurred as a result of a request filed by the petitioner herself, as can be seen from the information provided by the respondent authority.
3. The petitioner's actions do not suggest an intention to evade customs inspection, making it impossible to conclude that she acted in bad faith. Therefore, given the absence of intent to defraud the tax authorities, it is reasonable to interpret the event as a mere mistake, which can be corrected, even belatedly, by submitting the relevant documents, which has occurred in this case.
4. Article 501, sole paragraph, of the Customs Regulations stipulates that forfeiture penalties result from infractions considered to cause damage to the Treasury, which does not appear to have occurred in this case.
5. Applying the penalty of forfeiture appears to be an unreasonable measure, and the provisions of Article 522, II, of Decree 91.030/1985 (Customs Regulations in force at the time of the event) should be observed, with the application of a fine being more appropriate in this specific case, without prejudice to other taxes due to the importation of the acquired goods.
6. Official appeal denied.
(TRF3ªR, Therefore, the penalty of forfeiture cannot be applied for false declaration of contents in cases where the goods arriving in the national territory actually correspond to those declared. Obviously, the facts do not fall under the rule. Any discrepancy in the quantity of goods declared and/or in the tax classification is only subject to the application of a fine.
Therefore, faced with the arbitrary actions perpetrated by the tax authorities, the importer has no alternative but to resort to the Judiciary.
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Written by: Juliana Perpétuo, Lawyer, graduated in Law in 2003 from the Centro Universitário das Faculdades Metropolitanas Unidas – FMU. Areas of expertise: Customs Law, Tax Law, and Criminal Law. OAB (Brazilian Bar Association): 242.614
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