The Regional Federal Court (TRF) of the 2nd Region, based in Rio de Janeiro, has annulled a customs fine of approximately R$1.5 million imposed on a company in the oil and gas sector. The Federal Revenue Service had applied the penalty because the company had reimported a machine without presenting an import license. For the inspection, this would be considered an administrative infraction and would imply the payment of a fine of R$30.1 million on the value of the goods.<\/p>\n\n\n\n
The company had imported a new machine from Houston, in the United States. But it had to temporarily return abroad for repairs. When the equipment returned to Brazil, the customs officer at Gale\u00e3o International Airport in Rio understood that it was used merchandise \u2013 which would require the presentation of an import license.<\/p>\n\n\n\n
\u201cThe issue is that the goods have always been new because they are the same importer,\u201d says attorney Marcus Francisco, from the law firm Villemor Amaral Advogados, who represented the taxpayer. He says that customs authorities in S\u00e3o Paulo and Porto Alegre, in addition to Rio de Janeiro, have been applying the penalty to the reimportation of goods temporarily exported for repairs or maintenance. \u201cThis greatly hinders the day-to-day operations of companies, which are unable to clear the equipment.\u201d<\/p>\n\n\n\n
Unanimously, when analyzing the case, the judges of the 6th Panel of the TRF of the 2nd Region confirmed a ruling in favor of the taxpayer. They stated that the import activity is different from that of reimportation, as already understood by the Superior Court of Justice (STJ) in 2006 (REsp 662.882).<\/p>\n\n\n\n
The judges ruled that the fine of 30% on the value of the goods cannot be applied to reimports. This is because the rule that provides for the penalty only allows it for imports. This is article 706, item I, a, of the Customs Regulations (Decree No. 6,759, of 2009). The provision determines the penalty \u201cfor the import of goods without an import license or document with equivalent effect\u201d.<\/p>\n\n\n\n
\u201cFurthermore, the goods were under the temporary export regime, for which, for re-entry into the country, only the registration of a Simplified Import Declaration \u2013 DSI was required, and not the issuance of an Import License \u2013 LI, as provided for in SECEX Ordinance No. 23\/2011\u201d, states the rapporteur of the case, federal judge Jos\u00e9 Eduardo Nobre Matta (case No. 5064845-49.2021.4.02.5101).<\/p>\n\n\n\n
For lawyer Carlos Augusto Daniel Neto, from Daniel & Diniz Advocacia Tribut\u00e1ria, the decision is particularly relevant because of the cancellation of the fine. \u201cBut it is also important because the court reaffirmed that import and reimport are distinct activities,\u201d he says.<\/p>\n\n\n\n
According to attorney Jeniffer Pires Cotta, from Kincaid Mendes Vianna Advogados, the case analyzed by the TRF is the \u201ctip of the iceberg\u201d of the problem of non-automatic import licenses \u2013 which serve to control the existence of similar national goods. The time required for importing in this modality, she adds, is much longer than that required for automatic licensing. \u201cIt means that the time spent is 250% longer, with the company paying storage fees and not having the imported equipment available,\u201d she states.<\/p>\n\n\n\n