Published in the Official Gazette of the Union on June 26, 2019, Ordinance No. 309 of the Ministry of Economy, dated June 24, 2019, addresses the Ex-Tariff regime, revoking:
the) CAMEX Resolution No. 66, of August 14, 2014;
b) CAMEX Resolution No. 103, of December 17, 2018.
It is well known that the regime imposes a temporary reduction in the import tax rate for capital goods (BK) and information technology and telecommunications equipment (BIT), in accordance with the MERCOSUR Common External Tariff (TEC), when there is no equivalent national production.
Thus, it aims to highlight the relevant changes that lead to a better organization of the system for obtaining Ex-Tariff status, insofar as, with the advent of the new Ministry of Economy Ordinance, a new understanding emerges for importers.
The previous ban on the use of Ex-Tariff items for the importation of used goods has been removed, and importers are now granted the right to a reduction in Import Tax.;
Regarding the MERCOSUR Common Nomenclature Code, previously the Brazilian Federal Revenue Service, through its Nomenclature Division, reviewed all suggestions submitted by applicants. From now on, however, the responsible body will only be consulted when there are indications of an error in the classification.;
‘'Art. 7º (…)
§ 2. If the Secretariat for Industrial Development, Commerce, Services and Innovation identifies evidence of an error in the tax classification reported by the applicant, it may consult the Special Secretariat of the Federal Revenue of Brazil for examination and opinion from that body regarding the matter.
The concept of ‘'national production'’ extended to the similar, In accordance with the Ex-Tariff regime, as stipulated in Article 13, items I to IV of the Ordinance.
Article 20 of the Ordinance prohibits the resubmission of a request that was rejected within the last 6 (six) months, counted from the date of its publication, except in the case of presenting new arguments not initially requested.
‘'Art. 20. Rejected applications may only be resubmitted after six months have elapsed from the date of publication of the rejection, except in cases where new relevant information is presented that was not included in the original application.'.
Therefore, the participation of DINOM of the RFB in the NCM review suggested by the applicant was necessary. With the decrease in coercive tax enforcement..., The Tax Auditor responsible for the customs clearance is now allowed to revise the NCM (Mercosur Common Nomenclature) code according to the situation, unlike what had been previously stated in a prior publication.
Given this legal uncertainty, which allows for subjectivity in verifying the NCM code, new forms of unconstitutional levies will be carried out, since the Tax Authority does not seek to exempt the importer from paying the tax or the fine resulting from an error in the tax classification, but rather to unjustly enrich itself, placing the responsibility for accuracy on the taxpayer.
Article 24, paragraphs 1 and 2 of the Ordinance, stipulates as follows:
‘'Art. 24 If, during the customs clearance process for imports, an error is found in the tariff classification of the granted Ex-Tariff and the new NCM code. If the information indicated by the Special Secretariat of the Federal Revenue of Brazil is marked as BK or BIT, The reduced import tax rate applicable to the new classification will be maintained..
§ 1 The provisions of the heading of this article do not exempt the importer from paying the fine for classification error (...);
§ 2 The fine referred to in paragraph 1 shall not apply when the Ex-Tariff classification is supported by a consultation process on the tax classification of goods as provided for in Normative Instruction No. 1,464, of May 8, 2014, of the Federal Revenue Service of Brazil.
Given the significant changes and interference in customs legislation, importers should seek the assistance of the Judiciary to ensure the effectiveness of their rights.
Source: OFFICIAL GAZETTE OF THE UNION
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Written by Gian Lucca Jorri, Lawyer, graduated in Law in 2016 from the Catholic University of Santos. Area of Expertise: Customs Law and Tax Law, OAB (Brazilian Bar Association): 404.759
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