It has been quite common practice for the tax authorities, without any legal basis, to subject import operations to customs review procedures, as provided for in articles 54 of Decree-Law No. 37/1966 and 638 of Decree No. 6,759/2009 (Customs Regulations).
According to the current legal framework, the procedure is applied. after the goods have been cleared through customs., with a view to verifying "the regularity of the payment of taxes and other charges due to the National Treasury, the application of benefits and the accuracy of the information provided by the importer in the import declaration, or by the exporter in the export declaration".
The deadline for submitting imports to the customs review procedure is 5 (five) years, counted from the date of registration of the import declaration (triggering event).
However, it should be emphasized, The review is only acceptable in cases where the import is parameterized for the green channel of customs clearance., In the first instance, there is no interference from customs officials in the clearance of goods. In the other sorting channels (yellow, red, and gray), release only occurs after effective participation by the tax authorities (physical and documentary verification of the goods), which, obviously, presupposes the regularity of the import.
This is because, in cases of suspected irregularities in importation, it is the responsibility of the public official to submit the goods to an administrative tax process, under penalty of committing the crime of prevarication ("failure to perform an official act").
Therefore, The tax authority cannot alter the previously adopted legal criteria for import regularity and/or the adopted tax classification without any legal basis., perhaps based on articles 54 of Decree-Law No. 37/1966 and 638 of Decree No. 6,759/2009.
OBJECTIONS TO TAX ENFORCEMENT. IMPORTATION OF GOODS. RED AND YELLOW CHANNELS. TAX CLASSIFICATION. CUSTOMS REVIEW. IMPOSSIBILITY. ATTORNEY'S FEES. MONETARY CORRECTION. IPCA-E. 1. 1. Having the goods been selected for the yellow, red, or gray channels of customs clearance (cases in which the customs authority analyzes the tax documentation and the physical verification of the goods themselves), no subsequent customs review is permitted (except in cases of fraud), since, in such cases, the tax authority agreed with the information provided by the importer. 2. The legal fees awarded to the winning party must be adjusted for inflation using the IPCA-E index; the use of the SELIC rate for their updating is inappropriate.
(TRF4. 2nd Chamber. Appeal/Mandatory Review No. 5003541-95.2015.404.7205. Federal Judge Rômulo Pizzolatti. Judgment of 09/14/2016.)
In these cases, the amendment must comply with the provisions of articles 145 to 149 of the National Tax Code.
Therefore, taxpayers should pay close attention to the legality of the administrative actions taken by the tax authorities.
If you have any questions, please contact our team so we can assist you.
News commented on by Juliana Perpetual, Lawyer, graduated in Law in 2003 from the Centro Universitário das Faculdades Metropolitanas Unidas – FMU, Area of expertise: Customs Law, Tax Law and Criminal Law. OAB: 242.614.
