On July 14, 2020, the 9th Federal Court of the Federal District issued a preliminary injunction ordering the immediate release of goods detained under tax inspection, without the need for a bond, and the Union must use its own means to collect any taxes or pecuniary penalties.
The purpose of the request was to release goods that were under tax inspection due to possible under-invoicing, punishable only by a fine, and not by forfeiture, according to the understanding summarized by the Supreme Federal Court (323/STF).
In the decision, the Federal Judge explained that there is already an understanding from the Superior Court regarding the isolated under-invoicing of imports, characterized by ideological falsehood in the commercial invoice concerning the value, nature, or quantity of the imported merchandise, and that in this sense, the penalty of forfeiture foreseen in article 105, item VI, of Decree-Law 37/66 does not apply, but rather the penalty of a fine stipulated in article 108, sole paragraph, of the aforementioned regulation.
And this is how the magistrate understood it: “In the specific situation of the case file, in a summary examination, this is what occurs. As reported and explained as the reason for the interruption, alleged discrepancies were observed regarding the declared value and the price actually charged (isolated under-invoicing), which would alter the value of other taxes to be collected and would trigger the imposition of a fine.”.
According to established case law on the matter, in cases of isolated under-invoicing of imports, characterized by falsification of the commercial invoice regarding the value of the imported goods, the penalty of forfeiture provided for in Article 105, item VI, of Decree-Law 37/66 does not apply, but rather the penalty of a fine stipulated in Article 108, sole paragraph, of the aforementioned legal instrument.
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Decision commented by Rebeca Ayres, Lawyer, Specialist in Customs Law and Foreign Trade from Univali-Itajaí. Areas of Expertise: Customs Law, Tax Law, and Maritime Law. OAB/BA 57.313 and OAB/SC 52.845.
