On September 28, 2021, the new COSIT Consultation Solution No. 158 was published in the Official Gazette of the Union – DOU, which, in theory, provides greater legal certainty to the taxpayer.
It is undeniable that indirect imports are a sensitive issue in the importer's daily life, since the tax and customs impacts are significant for their operation. Being penalized, regardless of the import method used, is equivalent to a loss.
In any case, the new Solution aims to provide a sense of hope and regularity regarding the operations of the "client of the client," that is, the one who places an order in advance with a national company, which in turn will acquire the imported goods through a third party, in the import-on-demand modality.
The fact is that the new COSIT Consultation Solution has solidified the understanding that there is no irregularity in the described operation, as the figure of the "client of the client" in no way harms or interferes with the import-on-demand operation; that is, this third party does not participate in the import operation, it is nothing more than a mere purchaser in national territory, and there is no need to discuss the oft-repeated thesis of an attempt to break the tax chain by the taxpayers.
Furthermore, it is important to highlight a highly relevant excerpt from the Ruling, which points out that "The mere corporate link between national companies involved in a legitimate import-on-demand operation is not to be confused with the offense of concealing the taxpayer through fraud, simulation or fraudulent interposition, as provided for in item V of article 23 of Decree-Law No. 1,455 of 1976."“
Another important point is the irrelevance of the length of time the goods remain in stock. According to the ruling itself, "The short period of time goods remain in stock does not, in itself, disqualify the modality of indirect import by order, as referred to in Article 11 of Law No. 11,281 of 2006."“
At this point, it is worth remembering that this understanding should also be applied to imports made on one's own account, a "thesis" that frequently forms the basis for million-dollar tax assessments. Notably, it makes no sense for the importer to wait for maritime transport, register the import, store the goods in stock, and only after this very long period, negotiate the goods on the domestic market. It appears that the RFB (Brazilian Federal Revenue Service) has been trying to adapt customs regulations to the factual reality of an import operation and its needs. Undeniably, speed is the key to success.
Therefore, it is hoped that the RFB, in accordance with the understanding given by COSIT Consultation Solution No. 158, will also apply these considerations not only to imports that require verification of the presence of the "client's principal," but to all other modalities, giving the taxpayer maximum security to operate in foreign trade.
Article by Fabricio Norat, Lawyer, graduated in Law in Graduated in 2014 from FMU/SP Faculdade Metropolitanas Unidas, specializing in Customs, Tax, and Business Law.. OAB/SP No. 431.023
