On August 5, 2021, the Chamber of Deputies approved Bill 591/21, which authorizes the private sector to operate all postal services and establishes the conditions for the privatization of the Brazilian Post and Telegraph Company (ECT).
 
Despite the political discussions surrounding the issue, the fact is that, if approved by the Federal Senate and sanctioned by the Executive branch, the provisions contained in Bill 591/21 could put an end to any discussion regarding the possibility of granting differentiated tax treatment to companies that provide international express transportation services, also known as couriers., and ECT.
 
While currently ECT (Brazilian Postal Service) is not obligated to collect any import tax whatsoever on behalf of its clients for shipments up to USD 50.00 (fifty dollars) and with both sender and recipient being individuals, due to the application of the provisions contained in Decree-Law No. 1,804/1980, which established the Simplified Taxation Regime for international postal and air freight shipments, a decree received as ordinary law by the 1988 constitutional order, regulated by the illegal and unconstitutional Ministry of Finance Ordinance No. 156/1999, courier companies are obligated to collect the amount corresponding to 60% (sixty percent) of the customs value of the imported goods, in a situation of total inequality when providing the same services.
 
This inequality exists because, as mentioned, they perform the exact same activity. According to the definition of the Brazilian Federal Revenue Service, international remittances “These are the goods or documents that arrive in or leave Brazil, called postal shipments when transported by the Post Office (ECT), or of express shipments, when transported by private international express transportation companies,
also known as companies courier.”
 
Decree-Law No. 1,804/1980 allows the extension of the application of the Simplified Taxation Regime to companies of courier, However, Ministry of Finance Ordinance No. 156/1999, when regulating the decree, prohibited the aforementioned extension, in a true affront to the limits of the Regulatory Power that had been attributed to it under the terms of Article 84, IV of the Federal Constitution.
 
The prohibition perpetrated by Ministry of Finance Ordinance No. 156/1999 is based on the mistaken premise that the international shipment of goods would be covered by the postal service, the provision of which would be exclusive to the Union (Article 21, X, of the Federal Constitution of 1988), as well as the provisions of Article 9, item I of Law No. 6,538/1978, which conditions the monopoly of ECT (Brazilian Postal and Telegraph Company) for the provision of the postal service of receiving, transporting and delivering letters, postcards and bulk mail nationally and internationally.
 
Although the Brazilian Supreme Court, in the judgment of the Argument of Non-Compliance with Fundamental Precept – ADPF 46, had already recognized, in concentrated and abstract control, that the monopoly of ECT (Brazilian Postal Service) should be restricted to the postal activities described in article 9 of Law No. 6,538/1978 (provision of postal services for receiving, transporting and delivering letters, postcards and grouped correspondence nationally and internationally), which would exclude international remittance services, the Brazilian Federal Revenue Service continues to tax companies in this area. courier, who have to resort to legal action to obtain, through diffuse and concrete constitutional review, exemption from the obligation to pay Import Tax on behalf of their clients for shipments up to USD 50.00 (fifty dollars) and with sender and recipient being individuals.
 
Therefore, if Bill 591/21 is indeed enacted into law, parcels and goods purchased through e-commerce and direct sales, sent via the physical networks of postal operators, will be considered postal items (§ 3 of article 2 of Bill 591/21). This means that any justification for granting a tax exemption to operations carried out by ECT (Brazilian Postal Service) to the detriment of the same operations carried out by courier companies would fall apart.
 
Bill 591/21 expressly provides that the operation of postal services under the private regime will observe the constitutional principles of the economic order, aiming to guarantee free, broad and fair competition through equal treatment of postal operators (§ 2, items II and V of article 4 of Bill 591/21).
 
Thus, what is promised with the changes promoted by Bill 591/21 is the reestablishment of equality between courier companies and ECT (Brazilian Postal Service), promoting greater competitiveness for companies operating in the international shipping sector.
  
Article by Renato Palaia, Lawyer, graduated in Law in 2002 from Paulista University/SP, specializing in Business and Customs Law.
OAB/SP No. 222.378