Operation Non-Stop investigates tax evasion in the fraudulent importation of goods

April 26, 2019

Operation Non-Stop investigates tax evasion in the fraudulent importation of goods.

DB Tesser

According to the news report, the operation called "Sem Escalas" (Without Stops), launched by the São Paulo State Treasury Department, aims to investigate suspected ICMS (Value-Added Tax) evasion in import operations. According to the tax authorities, "companies deliberately listed establishments located in other states as importers in their import declarations, in order to take advantage of potential tax benefits. However, the tax authorities suspect that goods cleared through customs at São Paulo ports and airports, which should have been destined for establishments in other states, were sent directly to São Paulo establishments belonging to the same group.".

However, despite the interpretation given to the case by the State Tax Authority, there is no irregularity in the import model adopted by many companies, which take advantage of tax benefits granted by other States to carry out their import operations.

Article 155, item IX, subparagraph “a”, of the Federal Constitution provides:

Article 155. It is the responsibility of the States and the Federal District to establish taxes. on:

(…)

II – transactions relating to the circulation of goods and services of interstate and intercity transportation and communication services, even if the operations and services originate abroad;

(…)

§ 2 The tax provided for in item II shall comply with the following:

(…)

IX – it will also apply to:

a) regarding the entry of goods or merchandise imported from abroad by natural or legal persons, even if not habitual taxpayers, regardless of their purpose, as well as on services rendered abroad, with the tax being due to the State where the domicile or establishment of the recipient of the goods, property or service is located; (...)”

From a simple reading of the article above, it is clear that the active subject of ICMS (Tax on Circulation of Goods and Services) is the State where the domicile or establishment of the recipient of the goods is located, that is, the ostensible importer, regardless of the import operation model adopted (on its own account, by order or on behalf of third parties).

It should also be noted that the regulation makes no provision regarding the need for the goods to physically enter the inventory of the ostensible importer; therefore, it is merely a matter of interpretation by the tax authorities.

Furthermore, it would be neither reasonable nor proportionate for goods cleared through customs in a location other than the importer's domicile to need to enter their inventory before being distributed in the domestic market. This would certainly make the entire operation economically unviable.

Regarding this matter, there are several case law precedents: RE-AgR 460.118/STF; RE 299.079-5/STF; RE-AgR 1096516/STF.

Therefore, companies that have been issued infraction notices for the improper collection of ICMS (a Brazilian state tax) on imports should seek legal recourse to protect their rights.

Source: SP FARM