Thus, the Brazilian Federal Revenue Service, relying on Ordinance 430/2017, has denied the admission of administrative appeals by taxpayers, disregarding the application of Article 56 of Law No. 9784/99, which provides for the possibility of appealing administrative decisions, arguing that Article 69 of the aforementioned law stipulates that specific administrative processes will continue to be governed by their own law, as is the case with the penalty of forfeiture, which means that the taxpayer's only recourse is to the Judiciary to address the aforementioned customs matter.
However, it has been argued that such a refusal violates the Federal Constitution and international treaties signed by Brazil, increasing legal uncertainty in the area of foreign trade, given that, being a topic that involves various areas of action by public bodies for customs control purposes, it opens the door to scattered regulations, causing even more uncertainty on the subject.
Thus, with the aim of aligning these international practices, the Federal Government has been expanding its scope in foreign trade, as exemplified by the internalization of the revised Kyoto Convention, through Decree No. 10,276, of March 13, 2020, which is of paramount importance in simplifying and harmonizing customs legislation.
Among the main points of this decree, Chapter 10 includes the possibility of appealing any administrative decision on customs matters, which means that the penalty of forfeiture would fall under this chapter, thus granting the taxpayer the guarantees provided for in the Constitution regarding full defense and due process.
However, the convention has barely been internalized and is already the subject of judicial discussion between the private and public sectors, the latter believing that its entry into force should await the 36-month period, in contrast to the understanding that, since there is already a specialized body capable of addressing the issue (Administrative Council of Tax Appeals – CARF), Decree 10.276/2020 would be able to have immediate self-application.
Thus, although recent judicial decisions are divided on both sides, considering the delicate economic situation experienced throughout the country and the world, as well as the fact that there is already a body in Brazil with a specialized panel in customs matters, the expected trend is that the CARF (Administrative Council of Tax Appeals) will soon be able to analyze infractions punishable by forfeiture, as a way to reduce the burden on the Judiciary and... To guarantee taxpayers greater legal certainty and efficiency in Public Administration.
Article written by Rebeca Ayres, Lawyer, graduated in Law in Graduated in 2017 from the Baiana Faculty of Law/BA, specializing 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.
