On August 23, Law No. 14,651 was enacted, amending Decree-Law No. 1,455/76 and Laws Nos. 10,833/03 and 14,286/21, to provide for the application and judgment of the penalty of forfeiture of goods, vehicles and currency.
The novelty is the provision for double appeal for cases subject to the penalty of forfeiture since, until its enactment, cases in which the penalty was applied were judged in a single instance, with no possibility of appeal to a higher court.
Once the tax-deficiency notice has been drawn up by the Brazilian Internal Revenue Service and an appeal has been submitted, the case will be sent for judgment in the first instance and, if the decision is unfavorable to the interested party, an appeal to the second instance may be filed within 20 (twenty) days, counting from the date on which the tax-deficient is informed, without prejudice to the destination of the goods or vehicle.
The judgment at second instance was assigned to the Customs Penalties Judgment Center (Cejul), made up of tax auditors from the Brazilian Internal Revenue Service (RFB), with national jurisdiction and exclusive competence to act in the activity independently of the customs authority.
A period of 20 (twenty) days is therefore guaranteed to challenge the tax auditor’s decision, however, there are cases in which the goods may be sent immediately after seizure when it comes to:
- livestock, perishables, flammables, explosives or other goods that require special storage conditions;
- goods that are deteriorated, damaged, spoiled, have expired, do not meet sanitary or agricultural requirements or do not comply with technical regulations or standards and must be destroyed; or
- cigarettes and other tobacco products.
The recent Normative Ruling issued by the Ministry of Finance, MF Administrative Rule No. 1005 of August 28, 2023, provides for the administrative rite of application and the powers of judgment of the penalty of forfeiture of goods, vehicles and currency.
In summary, in the first instance, the judgment will be made monocratically by a tax auditor who is part of the National Judgment Team (Enaj). In the second instance, by the Appeals Chambers, ending the discussion of the matter in the administrative sphere.
Despite the fact that the new legislation signals a benefit to the accused through the possibility of exercising a broad defense and an adversarial proceeding, constitutionally guaranteed in Article 5, LV of the Federal Constitution, it does not seem to us that there will be impartiality and independence, bringing legal certainty to such a sensitive issue, since the final decision will be made by the collegiate body of tax auditors of the Brazilian Internal Revenue Service, and will still be restricted to the tax agency itself that applied the penalty.