On March 9, 2021, the Supreme Federal Court's decision declaring constitutional the retention of goods during customs clearance for imports until payment of tax credits determined by the tax authority became final, through the judgment of Extraordinary Appeal No. 1,090,591 (Topic 1042).
Just like the aforementioned decision, the Customs Regulations also provide for the legality of such a condition in Article 570.
“Art. 570. Constatada, durante a conferência aduaneira, ocorrência que impeça o prosseguimento do despacho, This course will be interrupted after the corresponding requirement is registered by the responsible Federal Revenue Auditor of Brazil..
§ 1o The interruption of the dispatch process is characterized, among other occurrences, by:
I – a não-apresentação de documentos exigidos pela autoridade aduaneira, desde que indispensáveis ao prosseguimento do despacho; e II – o não-comparecimento do importador para assistir à verificação da mercadoria, quando sua presença for obrigatória.
[…]
§ 4o
When the deposit or payment of any financial or exchange charges or the fulfillment of similar obligations is required, the dispatch will be suspended until the requirement is met..”
However, it is necessary to be aware of exceptional circumstances that may culminate in a procedural judgment that differs from Supreme Court Ruling 1042.
Article 151 of the National Tax Code establishes that in certain circumstances, such as installment payments, the granting of a preliminary injunction in a writ of mandamus, the deposit of the full amount, expression of disagreement, challenge to an infraction notice through administrative channels, among others, the tax credit becomes subject to suspension of enforceability, as transcribed below:
Art. 151. They suspend the enforceability of the tax credit.:
I – moratorium;
II – the deposit of its full amount;
III – complaints and appeals, under the terms of the laws regulating the administrative tax process.;
IV – The granting of a preliminary injunction in a writ of mandamus.
V – the granting of a preliminary injunction or provisional relief, in other types of legal action;
VI – installment payments.
Sole paragraph. The provisions of this article do not exempt compliance with ancillary obligations dependent on, or consequent to, the principal obligation whose credit is suspended.
Therefore, in cases where tax credit assessment occurs by the tax authority, the Judiciary must be guided by the provisions of Article 489, § 1, VI of the Code of Civil Procedure, verifying the distinction between cases where there is a suspension of the enforceability of the tax credit and other cases where there is no suspension, so that it can then apply topic 1042, consolidated by the STF (Supreme Federal Court).
“"Article 489. The essential elements of a judgment are:"
[…]
§ 1. Any judicial decision, whether interlocutory, a judgment, or a ruling, that:
[…]
VI – "Failure to follow a summary statement, case law, or precedent invoked by a party, without demonstrating the existence of a distinction in the case being judged or the overcoming of the understanding."”
Therefore, the legal action aimed at releasing goods in the customs clearance process for imports, where the enforceability of the tax credit is suspended, is valid and well-founded, even after the Supreme Federal Court's decision consolidating topic 1042.
Artigo por Thays SIlva Gonçalves, Advogada, Formada e Pós Graduada em Direito pela Universidade do Vale do Itajaí – UNIVALI. OAB/SC nº 38.073
