According to the understanding expressed by the Judiciary, as well as by the Administrative Council of Tax Appeals, accounting inconsistencies do not serve as grounds for concluding that there was an irregularity in the importation., perhaps Classified as fraudulent intermediation in the presumed form, where it is assumed that the origin, availability, and transfer of the resources used in the importation have not been proven.

“(…)

Article 23, V, of Decree-Law No. 1,455/76 considers offenses related to imported goods to be damages to the public treasury when the true importer is concealed, including the fraudulent use of third parties.

Paragraph 1 of the provision stipulates the penalty of forfeiture of goods for damage to public funds resulting from the conduct, and paragraph 3 allows for the conversion of the penalty into a fine if the goods have not been located or have been consumed.

Paragraph 2 states that "fraudulent intervention in foreign trade operations is presumed when the origin, availability, and transfer of the resources used are not proven.".

The seizure report and the tax custody document on pages 175/187 clearly demonstrate the accounting irregularities committed by the plaintiff company, making the sale of the goods in its inventory truly questionable.

Nevertheless, the document does not authorize the conclusion that there is no proof of the origin of the funds used for the disputed import operation.”

(Case No. 0038618-43.2014.4.01.3400, pending before the 3rd Federal Court of the Federal District)

“(…)

Indeed, despite all the fiscal efforts to demonstrate the weakness of the company's accounting records, I believe that such evidence and indications would only support the eventual assessment of taxes linked to its revenue or turnover and, as

As highlighted by the tax authorities themselves, administrative sanctions can be applied, such as the cancellation of the company's CNPJ (Brazilian tax ID).

However, the possible finding of accounting fraud is not sufficient to substantiate a specific tax accusation regarding foreign trade. It is important to emphasize that the rules governing the legal obligations to pay taxes differ, in essence, from those rules that provide for administrative sanctions for damage to public funds, which are precisely the customs infractions that were intended to be imputed in this case.

And, as highlighted in the leading opinion of the appealed judgment, the application of the intended penalty (a fine of 100%) requires, as a condition, that lack of proof of origin, availability and transfer of resources employed in those specific operations examined..

The mere allegation or even demonstration that, in general, the company's accounting documents during the period in which the imports occur do not prove the legality of the funds, does not fit the criminal type established in the aforementioned article 23, item V, §2 of Decree Law No. 1,455/76.

Furthermore, it is noted that the records do not even provide evidence that Utilidad lacked sufficient resources to carry out the imports. On the contrary, the bank statements prove the existence of cash on hand and high credit limits.

O What the tax authorities actually identified was the company's lack of proper accounting, which, in their words, resulted in a failure to demonstrate the legality of these funds, a circumstance that is not sufficient to characterize or substantiate the commission of a customs offense. However, as seen, the criminal offense examined does not require that the funds be legal, but only that their origin be proven. Even funds obtained illegally by the importer could prove/demonstrate their origin..

(Administrative Tax Proceeding No. 10111.720547/20152-73, Judgment No. 3201-004.918)

Therefore, it is of utmost importance to advise companies on import processes in order to avoid illegal and arbitrary assessments by the tax authorities.

News commented on by Juliana Perpetual, 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