The Cross-Border Legal Paradox

The Cross-Border Legal Paradox

How to justify to the Brazilian Central Bank the sending of payment abroad of orders imported by the importing consumer who did not pay customs taxes, or, better, were not called to pay the uncharged tax, but this tax is due to the Brazilian Federal Revenue?

If these orders neither pay customs taxes, even though the payment for the acquisition was charged in Brazil, nor do they have an Import Declaration, or Brazilian invoice which proves their legal origin of entry into the country, and their amounts are sent abroad with consent of the Central Bank of Brazil, how can it differ from smuggled cargo that is sold on marketplaces?

It is clear in this process the tax evasion in the model, and the marketplaces that participate in import processes where tax evasion occurs have joint and several liability.

On the other hand, an order that has not been reviewed at customs, where the importing consumer has not been called upon to collect taxes, despite being due, cannot guarantee that counterfeit, adulterated, or even prohibited import products will not enter Brazilian soil.

If even the Post Office does not have the capacity to tax orders, how could the Federal Revenue distinguish the difference between an order sent internationally to a customer, and an order originating from smuggling and posted at the Post Office to a Brazilian citizen?

In my humble opinion, it is currently impossible to make this distinction, paving the way for counterfeit products of all kinds, without considering the possibility of illegal remittances of valuables abroad.

Undoubtedly, this breach will not last forever, for the good of cross-border. I believe that it will take at least 2 to 4 years for the entire control system to be configured and perfectly working.

When I chose to work in the Direct Import model, I consulted lawyers specializing in taxes, tax from the Federal Revenue Service of Brazil, traditional financial institutions, and accounting companies, and the conclusion I came to, gathering all this information received, was unanimously as follows:

The Cross-Border Legal Paradox:

I- Every order that enters Brazilian soil must pay taxes, whether in Formal or Direct Import,

II – The Import Declaration is the proof of this payment, it is the document that demonstrates the legality of the import, regardless of the imported value (customs value).

This document proves that the imported good was duly inspected by the Brazilian Federal Revenue Service, and collected the taxes due upon entering Brazil.

III – All remittances of values to abroad carried out through any Brazilian bank must have an Import Declaration that justifies it.

The Central Bank, whether in Formal or Direct Import, must have the Import Declaration as proof, proving the legality of the operation.

Each transaction sent to the bank or broker that will send the corresponding amount abroad must be linked not only to the importer’s invoice, but also to the Import Declaration, or the shipment may be considered illegal by the Brazilian Central Bank.

If today, 99% of direct cross-border imports do not comply with these three rules, they are irregular before the Brazilian government, but if nothing has been done to the detriment of this fact, it is not because they are correct, but because the Brazilian Federal Revenue and the Central Bank are adapting to a new modality of international trade, wisely observing it and deciding the best way to control it.