:: Fraudulent Interposition ::
Although there is much discussion regarding the best import method and business format, the fact is that importing on an "own account" basis cannot be judged as criminal simply because the goods are negotiated before customs clearance, or because there is a company interested in the goods before they are imported.
Fraudulent intervention It is a matter of considerable importance in the world of customs law, but not everyone is familiar with it.
In short, fraudulent intermediation is presumed in foreign trade operations when there is no proof of the origin, availability, and transfer of the resources used (Article 689, § 6 of the Customs Regulations).
Supporting this point, it is worth highlighting the recent ruling by the Superior Court of Justice (STJ), which upheld the lower court's decision against the Federal Public Prosecutor's Office.
The case brought together matters of Tax Law e Criminal Law. Three representatives of an importing company were accused of the crimes of fraudulent intermediation in the importation of goods, falsification of documents, and smuggling.
In their defense, it was argued that the business model consisted of first importing the goods and then contacting clients interested in the product – which, according to the Federal Public Prosecutor's Office, would not constitute a criminal act.
Because the case depended on a re-analysis of evidence, which is prohibited at this stage of appeal (STJ Precedent No. 7), the defendants were acquitted, and the judgment was upheld in its entirety. Appeal to the Superior Court of Justice (STJ): AREsp No. 1,415,166/ES
Source: Federal Revenue Service / STJ
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