Photo: Industry Portal
Commercial exchanges between countries can attract those who, with the sole objective of obtaining high profits, look for ways to circumvent customs laws, harming the treasury and fair competitiveness, which must prevail in a free market. Not paying taxes is unfortunately a recurring practice for many importers who sell products at prices below market prices.
Such deviations occur in a sophisticated way. To circumvent customs controls, they take advantage of the complex structure that governs the import declaration. These are cases of intentional manipulation of the tax classification of products, through the Mercosur Common Nomenclature, which can reduce the value of the tax due upon import. Products must comply with this rule and the import tax depends on correct adaptation to the existing code. A small change can result in a much lower tax, thus distorting the costs that impact the final price.
The immediate reactivation of the Brazilian Federal Revenue Service's Siscori foreign trade system is necessary.
Identifying these deviations is often difficult for customs authorities, as the multiplicity of very similar products and characteristics can sometimes be confusing. However, companies operating in the market are able to identify errors in such classification. After all, taxpayers have an obligation to know their market and, therefore, can point out mistakes, especially malicious ones regarding tax classification.
At this point, public-private cooperation is essential to compose actions to strengthen integrity and compliance. In Europe, the USA and Latin American countries, governments encourage private action, as the objectives are convergent: while the Tax Authorities have the obligation to prevent customs fraud, the productive sectors need to combat illegal competition, which distorts the entire market.
In Brazil, until 2007, it was very difficult to find this cooperation, as the Federal Revenue Service (RFB) did not provide data on imports. We witnessed many efforts, until public access to NCMs was allowed, in order to facilitate the identification of under-invoicing and erroneous tax declarations by unfair competitors, for the necessary measures.
In 2007, with the publication of Ordinance SRF 306, updated with Ordinance RFB 361/2016, access to this data was allowed through the Federal Revenue Service's foreign trade system (Siscori), representing a major advance. This opening enabled corrective measures, which resulted in clear benefits for revenue collection and the improvement of a fairer market. The customs administration began to receive more accurate reports, being able to identify deviations more easily, especially after the creation of the current Corad (Special Coordination for Customs Risk Management).
However, contrary to these advances, at the end of the year 2021, in December, Ordinance RFB 100/2021 was published, determining the deactivation of Siscori, under the justification (in our erroneous view) that the Comex Stat System would contemplate these data.
This justification is in no way sustainable. Siscori is more efficient in monitoring Brazilian imports, given the timely detailing that makes up its platform, substantially differentiating it from the Comex Stat System, which presents information with less transparency. How to identify, for example, a commercial offense, such as deviation from tariff classification or under-invoicing, in an NCM that aggregates materials described as “other” or “parts and pieces”? And in the case of products that are included in a single NCM, but the characteristics of the products are determining factors for their pricing?
This setback, without any opportunity for expression by the national industry, will prevent access to the complete description of the imported product, its unit price, its characteristics, etc., information that is fundamental and not available in other systems. The cooperation between the productive sectors and the public authorities, which has been carried out since 2007, will be interrupted, to the joy and profit of those who practice import irregularities.
Commercial openness must be encouraged, but never weakened by the tricks of clever people who violate the law to obtain advantages. It is inexplicable the extinction of a fundamental monitoring tool, which allows the correct identification of signs of unfair international trade practices and the consequent complaints to the country's competent government trade defense bodies, such as the RFB itself and SDECOM, which act in the prevailing of national interests.
The competitiveness of our productive sectors will be severely harmed, weakening the necessary control mechanisms, contrary to best international practices. Advances consolidated in 14 years of experience, which increased the necessary transparency and customs control, are being canceled.
The immediate reactivation of the RFB's Siscori system is necessary to ensure that the national industry has access to detailed information on Brazilian foreign trade operations, always promoting the defense of legality in cooperation with customs authorities.
It is not possible for the defense of the law to be harmed and misconduct to be facilitated. We need to advance integrity processes and not renege on them.
Edson Vismona and Márcio Gonçalves are lawyers, respectively president of the Instituto Brasil Legal and the ETCO Institute; and president of the Institute of Intellectual Capital, as well as director of the Department of International Relations and Foreign Trade at Fiesp.
This article reflects the opinions of the author, and not of the newspaper Valor Econômico. The newspaper is not responsible and cannot be held responsible for the information above or for losses of any nature resulting from the use of this information.
By Edson Vismona and Márcio Gonçalves
04/02/2022
Source: Valor Econômico
