Damage to customs control does not require proof, says Revenue

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When there is damage to customs control, there is no obligation to prove it, as customs-tax liability is objective. This is how Consultation Solution No. 38/2019 of the Federal Revenue Service established.


The understanding was based on a question from a private company regarding an assessment based on article 711 of Decree No. 6,759/09, which regulates the administration of customs activities, and the inspection, control and taxation of trade operations exterior. The company made a mistake when filling out the Import Declaration (DI), which resulted in an error in providing information at the time of customs clearance and the imposition of a fine of 1% on the customs value of the merchandise.

According to the solution, article 711 has B2B Lead a clearly punitive nature by imposing a penalty on the customs value of the merchandise in cases where "the importer omits or provides inaccurate or incomplete information of an administrative-tax, exchange rate or commercial nature". "However, in the case under analysis, it is irrelevant to investigate the existence of fraud and/or possible loss to the tax authorities", states an excerpt from the document.

Consolidated Understanding
In the assessment of tax expert Allan Fallet , partner at Amaral Veiga Advogados, the first point that should be raised on the topic is that there is already a judicial position in this regard, according to the understanding established by the Superior Court of Justice.

"In Resp No. 1,125,348, the STJ established that placing information in inappropriate fields of the DI in relation to the discrepancies found in the description of the merchandise would be insufficient to characterize the infraction when there was no harm to the Administration", it says.

In other words, according to Fallet, "a mere formal mistake in filling out the DI, embodied in the provision of information in inappropriate fields, would not be equivalent to the provision of incomplete or inaccurate information, which is why the application of the fine provided for in article 711 would not be appropriate".


Conditions for infraction
For the specialist, there are two conditions for the materialization of the infraction that must be analyzed carefully by the taxpayer. "Omitting or providing inaccurate or incomplete information of an administrative-tax, exchange rate or commercial nature (necessary condition); and that necessary to determine the appropriate customs control procedure (sufficient condition)", he explains.



Also according to Fallet, the information must be necessary to determine the appropriate and mandatory customs control procedure, for the correct configuration of the infraction, which, for example, would not occur when the expenses with unloading and handling (foremanship expenses) were not included in the customs value of the imported merchandise.