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Withholding imported goods from customs for payment of tax difference does not offend the Constitution

18/09/2020

The Brazilian Federal Supreme Court (STF) decided that it is possible to condition the customs clearance of imported goods to the payment of a tax difference arbitrated by authority on the value of the goods. The Court, in a unanimous decision, in the virtual session concluded on September 14, followed the vote of the rapporteur, Justice Marco Aurélio, and granted the Extraordinary Appeal (RE) 1090591, with recognized general repercussion (Theme 1042).

Coercive means

The appeal was filed by the Union against a decision of the Federal Regional Court of the 4th Region (TRF-4), which held that it was impossible to condition the customs clearance of imported goods to the payment of the differences. In this case, the Federal Revenue Service had withheld the goods imported by a company in Santa Catarina, with the allegation of under-invoicing (declaration of lower price of the goods for payment of the lower tax), and conditioned its release to the payment of fine and complementary taxes or deposit (guarantee) corresponding. By removing the retention, the TRF-4 understood, among other points, that the Precedent 323 of the Supreme prohibits the seizure of goods as a coercive means for payment of taxes.

In the RE, the Union argues that there is no similarity between the preceding that originated the Precedent 323 and the situation portrayed in the process, because, on that occasion, the seizure of goods as coercive means for payment of taxes was discussed. In this case, what is under examination is the retention of goods subject to import customs clearance until the payment of the difference resulting from fiscal arbitration.

SP/CR//CF - CG/FB/GL

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