Laura Ivasco – Lawyer, OAB/SP No. 312.237. Graduated in Foreign Trade in 2004 from UNIBERO/SP and in Law in 2010 from Anhanguera/SP. Area of expertise: Foreign Trade Management / Customs Law. Postgraduate degree in Civil Procedural Law (Mackenzie/SP). Member of the Customs Law and Women Lawyers Commission of the OAB/SP.
The principle of voluntary disclosure, applicable in customs matters as well as in tax matters, originates in criminal law and stems from the ideal of reconsideration on the part of the person who committed the irregularity, in the face of a situation that can be remedied.
The legal nature of this legal mechanism as a subjective right is quite clear, since, if the requirements are met, the taxpayer has the prerogative to make use of it, and the Administration cannot oppose the exercise of this right.
Following the enactment of Law No. 12,846/2013, known as the "Anti-Corruption Law," there has been a growing concern – motivated by – the pursuit of compliance in customs dealings by stakeholders, especially in import processes. On the other hand, there has been an increasing number of tax assessments, precisely to curb as much as possible actions that are detrimental to the domestic market and the Treasury, in one of the most relevant and promising areas of the national economy, namely, foreign trade.
Generally, voluntary disclosure is outlined in the National Tax Code, as can be seen in its article 138. From the understanding of the aforementioned provision, the general requirements for its applicability are extracted, namely, (i) spontaneity, objectively substantiated in the disclosure made by the taxpayer himself and by no one else; (ii) temporal criterion, which imposes the imperative that the measure be initiated before the commencement of any administrative procedure or inspection measure specifically related to the infraction; and (iii) the possibility of redress, materialized in the payment of the tax due and the interest for late payment or deposit of the amount determined by the Authority, if applicable.
The applicability of this measure within the customs context was not expressly foreseen until the enactment of Provisional Measure No. 497, of July 27, 2010, which was converted into Law No. 12,350/2010 and provided a great service by bringing a new wording to paragraph 2 of article 102 of Decree-Law 37/66, expressly stating this possibility. See:
Article 102 – The voluntary reporting of the infraction, accompanied, if applicable, by the payment of the tax and surcharges, will preclude the imposition of the corresponding penalty. (Wording given by Decree-Law No. 2,472, of 01/09/1988)
§ 1 – A complaint filed is not considered spontaneous: (Included by Decree-Law No. 2,472, of 01/09/1988)
a) during the customs clearance process, until the goods are released; (Included by Decree-Law No. 2,472, of 01/09/1988)
b) after the commencement of any other tax procedure, by means of an official written act, carried out by a competent official, aimed at investigating the infraction. (Included by Decree-Law No. 2,472, of 01/09/1988).
§ 2o Voluntary disclosure excludes the application of penalties of a tax nature or administrative, with the exception of penalties applicable in the case of goods subject to forfeiture. (Wording given by Law No. 12,350 of 2010).
Thus, considering the aforementioned amendment, any doubt regarding the applicability of voluntary disclosure in customs matters should be dispelled, highlighting, of course, the restriction on its use during the customs clearance process until release or after the start of another procedure, in accordance with the provisions contained in subparagraphs a and b of the first paragraph of the same article.
Without intending to defend a strictly literal interpretation of the rule, which is often marred by loopholes that make such an exercise impossible, it must be noted that in this specific case the interpreter would not encounter such difficulty in interpretation, since after the changes introduced in Decree-Law No. 37/66 by Law No. 12,350/2010, the applicability of spontaneous disclosure in relation to customs infractions became crystal clear, constituting an important mechanism for those involved in foreign trade.
Source: IVASCO, Laura. The applicability of voluntary disclosure in customs matters., in Maritime, Port and Customs Law – Contemporary Issues. Eliane M. Octaviano Martins, Paulo Henrique Reis de Oliveira and Wagner Menezes, organizers. Belo Horizonte: Arraes Editores Ltda. 2018. Vol. 2, p. 95
