Fábio Bernardo
Lawyer at Marcos Martins Advogados Associados
In the context of customs control by the Federal Revenue Service, it has been common for certain imported goods to be detained on the basis of mere presumptions of irregularities, with their release being conditional on the end of the inspection procedure, which can last up to 180 (one hundred and eighty) days.
Needless to say, this attitude on the part of the tax authorities has caused huge losses for importers, who are prevented from selling their goods and carrying out their business activities on a regular basis, not to mention those who work with perishable goods.
One alternative for reducing losses is to offer a guarantee for the release of the goods held, which, however, has not been accepted by the IRS.
In this context, the aim of this article is to demonstrate that, in the light of the legislation dealing with the special customs control procedure, it is perfectly possible to provide security for the immediate release of goods detained by the tax authorities.
In fact, the special customs control procedure is provided for in article 68 of Provisional Measure 2.158-32, of August 24, 2001, in verbis:
Art. 68: When there is evidence of an infraction punishable by the penalty of forfeiture, the imported goods will be retained by the Federal Revenue Office until the corresponding inspection procedure has been concluded.
Sole paragraph. The provisions of this article will apply in the manner to be regulated by the Federal Revenue Office, which will decide on the maximum retention period, as well as the situations in which the goods may be delivered to the importer, before the conclusion of the inspection procedure, through the adoption of the necessary tax precautionary measures. (emphasis added)
The wording of article 794 of the Customs Regulations, approved by Decree 6.759 of February 5, 2009, is identical.
From the legislation mentioned so far, it can be seen that if there is evidence of an infringement punishable by a penalty of forfeiture, the goods must be detained by the Brazilian Federal Revenue Service until the conclusion of the special inspection procedure.
Nonetheless, by express provision of the rules transcribed above, it is up to the Federal Revenue Service to decide on the procedures to be adopted by the inspection and the respective period for retaining the goods, as well as the cases in which the goods can be handed over to the importer before the inspection is concluded.
Thus, there is a normative requirement for the Federal Revenue Service to establish the cases in which goods can be released before the conclusion of the inspection procedure.
In this context, Normative Instruction no. 206 of September 25, 2002, which deals with import customs clearance, in its article no. 69, provided for the possibility of retaining goods for a period of 90 (ninety) days, extendable for an equal period, in duly justified situations, as well as the possibility of release before the end of the inspection, upon presentation of a guarantee.
Likewise, Article 7 of Normative Instruction 228 of October 21, 2002, which deals with the special procedure for verifying the origin of funds used in foreign trade operations and combating fraudulent interpositioning of persons, provides for the possibility of releasing goods with the provision of a guarantee.
Thus, the IRS has always allowed taxpayers to release detained goods on presentation of a guarantee.
However, with the advent of Normative Instruction No. 1,169 of June 29, 2011, the old IN No. 206/02 was completely revoked, and the new rule began to regulate the special procedures for controlling the import and export of goods in a broader way than IN No. 228/02, which is still in force.
However, the new IN made no provision for the release of goods prior to the conclusion of the inspection. In fact, article 5 of the rule in question provides for the goods to be detained, without any caveats.
Notwithstanding this, IN 1.169/2011, although it maintained the 90 (ninety) days, extendable for an equal period, for the conclusion of the procedure, created situations of suspension of the course of the deadline, which can lead to the inspection lasting much longer than 180 days, as can be seen in article 9 of the rule.
It is unacceptable for goods imported by the taxpayer to be summarily detained for more than 180 (one hundred and eighty) days without any possibility of release.
This is a real attack on free trade, given the taxpayer’s natural need to trade goods in order to achieve the company’s goals, not to mention cases where the goods are perishable.
Furthermore, the entire withholding procedure is based on mere indications, suspicions and presumptions, which indicates the total disproportionality of the act.
And this can be seen throughout the Normative Instruction, for example in article 1, which talks about “goods which are suspected of being irregular…” (emphasis added), Chapter I which talks about “indications of irregularity” (emphasis added), Article 2 which deals with “cases of suspicion as to the…” (emphasis added), Paragraph 1 of Article 2, which deals with “doubts on the part of the customs inspector as to the price” (emphasis added), among other figures included throughout the rule.
Thus, there is no justification for the summary retention of goods without the possibility of releasing them on presentation of a guarantee, and, given the silence of IN 1,169/11, the provision of IN 228/02 dealing with the provision of a guarantee should prevail.
In this sense, the case law of the Federal Regional Court of the 3rd Region:
CIVIL PROCEDURAL AND TAX LAW. INTERLOCUTORY APPEAL. INTERLOCUTORY APPEAL. WITHHOLDING ON IMPORTS. TAXATION. PRELIMINARY INJUNCTION. ARTICLE 7, PARAGRAPH 2, OF LAW 12.016/2009. BOND. ARTICLE 68, SOLE PARAGRAPH, MP 2.158-35. APPEAL DISMISSED.
[…]
6. However, the sole paragraph of article 68 of Provisional Measure 2.158-35/2001 makes it clear that it is up to the RFB to decide on “the maximum retention period, as well as the situations in which the goods may be delivered to the importer, before the conclusion of the inspection procedure, through the adoption of the necessary tax precautionary measures”; indicating that the legislator did provide for the right to release on bond, and that it is only up to the tax authority to deal with the situations, which was not done by IN RFB 1. 169/2001, the provision contained in IN SRF 228/2002 prevails in the absence of the supervening text; it is worth remembering that this normative provision has been declared valid in the light of the governing legislation by case law […].
(TRF-3 – AI: 0008444-80.2012.4.03.0000, Rapporteur: FEDERAL REPRESENTATIVE CARLOS MUTA, Judgment: August 16, 2012) (emphasis added)
It can therefore be concluded that the refusal to release goods detained upon presentation of a guarantee in the inspection procedure of IN 1.169/11 is illegal in view of:
I) the imperative nature of article 68, of MP 2.158-35/01, and of the Customs Regulations, which determine that the Federal Revenue Service regulates the hypotheses of release of goods detained before the end of the special inspection;
II) the provision in the revoked IN 206/02 and in the still current IN 228/02 for the possibility of providing a guarantee for the release of detained goods;
III) the unreasonable period of more than 180 (one hundred and eighty days) that the inspection can last;
IV) the total arbitrariness with which the Federal Revenue Service withholds goods based on mere indications, suspicions and presumptions;
In this way, taxpayers who have been harmed by the tax authorities’ refusal to release goods have ample arguments to assert their rights before the courts.
