Section 1, paragraph 1, of Law 9,873/99, establishes a limitation "in the administrative proceeding, paralyzed for more than three years, pending judgment or order”, determining its ex officio cancelation. In the scope of tax law, reaching the statute of limitations is one of the hypotheses of extinction of the tax charges, according to Section 156, item V, of the National Tax Code (“CTN”).

The applicability of this provision to tax credits, however, is a highly controversial matter. According to the current jurisprudence of the Superior Court of Justice (“STJ”), there is no statute of limitations in the course of a tax administrative proceeding. The Federal Revenue Service of Brazil (“RFB”), in turn, tries to extend this reasoning to credits arising from penalties provided for in customs legislation, that is, customs charges.

For the RFB, it is not appropriate to talk about statute of limitations in the administrative proceedings discussing customs charges - even if the proceeding has been paralyzed for over three years. The main argument of the RFB’s rationale is that customs charges seek to assist the collection of Import Tax (“II”) and Export Tax (“IE”). Due to this ancillary nature, administrative proceedings aiming at the collection of such penalties should follow the same treatment given to the collection of tax credits.

The understanding held by the RFB has prevailed in the Federal Administrative Council of Tax Appeals (“CARF”), that has even issued a binding Ruling[1] establishing that the statute of limitations foreseen in Law 9,873/99 is not applicable in the tax administrative proceeding:

CARF’s Ruling No. 11

Approved by the Plenary in 2006

The statute of limitations to administrative proceedings is not applicable in tax administrative proceedings. (Council Session of 06/07/2018, Published on 06/08/2018).

Precedents:

  • Judgment 103-21113, of 05/12/2002;
  • Judgment 104-19410, of 12/06/2003;
  • Judgment 104-19980, of 13/05/2004;
  • Judgment 105-15025, of 13/04/2005;
  • Judgment 107-07733, of 11/08/2004;
  • Judgment 202-07929 of 22/08/1995;
  • Judgment 203-02815 of 23/10/1996;
  • Judgment 203-04404 of 11/05/1998;
  • Judgment 201-73615, of 24/02/2000; and
  • Judgment 201-76985, of 11/06/2003.

Although the precedents supporting this Ruling dealt exclusively with tax matters, CARF has routinely and repeatedly applied its understanding in cases dealing with customs matters, which may suggest a supposed equivalence between the tax and the customs charges within the federal public administration.

See, for example, the recent understanding held in the judgment 3402-010.219, held on March 21st, 2023:

"SUBJECT: ANCILLARY OBLIGATIONS Calendar-year: 2008

(...)

STATUTE OF LIMITATIONS IN ADMINISTRATIVE PROCEEDINGS. It is inappropriate to argue for the statute of limitations in the tax administrative proceeding, and the matter has already been faced by CARF’s Ruling 11.

(...)

6. STATUTE OF LIMITATIONS IN ADMINISTRATIVE PROCEEDINGS

CARF’s Ruling 11 sets the inapplicability of the statute of limitations in the tax administrative proceeding.

'CARF’s Ruling No. 11 Approved by the Full in 2006 The intercurrent limitation period does not apply in the tax administrative process. (Binding, according to ME Ordinance 277/18). Precedents: Judgment No. 103-21113, of 05/12/2002 Judgment No. 104-19410, of 12/06/2003 Judgment No. 104- 19980, of 13/05/2004 Judgment No. 105-15025, of 13/04/2005 Judgment No. 107-07733, of 11/08/2000 4 Judgment No. 202-07929, of 22/08/1995 Judgment No. 203-02815, of 23/10/1996 Judgment No. 203-04404, of 11/05/1998 Judgment No. 201-73615, of 24/02/2000 Judgment No. 201-76985, of 11/06/2003'.

No reason to the Appellant."

Although customs law and tax law are deeply intertwined, they are not to be confused, as they are supported by different normative regimes. The Ministry of Economy itself has already made this division in Ordinance 260, of 2020 (“ME Ordinance 260/20”)– and in the judgments resulting from it. In the ME Ordinance 260/20, it was established that Section 19-E of Law 10,522/02 (which determines the untying vote in favor of the taxpayer and was inserted by Law 13,988/20) would only be applicable to tax charges, and not to customs matters.

Nonetheless, the position recently presented by STJ in Special Appeal 1,999,532/RJ rekindles the debates and gives strength to the understanding held by the taxpayers – which, so far, was rejected by CARF.

On May 9 of this year, when judging the Special Appeal 1,999,532/RJ, the First Panel of the STJ, unanimously, acknowledged the administrative nature of the fine imposed for delay in the registration of information by the carrier in the Integrated Foreign Trade System (Siscomex) (foreseen in Section 107, item IV, subparagraph ‘e’, Decree-Law 37/66). Thus, the three-year statute of limitations, established in Law 9,873/99, became applicable to these cases.

According to the Judges, compliance with customs obligations aims at "ensuring compliance with the rules relating to foreign trade." Any gain in regards to tax obligations shall be considered as an indirect benefit of the customs duty. Therefore, the nature of the fine established in Section 107, item IV, subparagraph ‘e’, Decree-Law 37/66 is of a custom obligation and therefore, is unequivocally of administrative nature, not tax.

Faced with this conclusion, the Judges decided for the applicability of the statute of limitations due to understanding that "the fines in question have a strictly administrative character, since they result from violation of a rule without direct relevance to the supervision and collection of the Export Tax" (emphasis in the original).

Although this is a precedent of only one of the STJ Panels and does not have binding effects to the public administration or to the judiciary, it is undoubtedly an extremely important decision, since  it reopens the way for taxpayers to raise discussions about the distinction in the treatment given by the Public Administration in tax and customs matters.

It is up to taxpayers, rethinking the strategy in this new jurisprudential scenario, to follow the development of this new phase of debates. Special Appeal 1,999,532/RJ  may be the turning point in the discussion on the classification and treatment of tax and customs charges in CARF.

 

[1] Under the terms of the Ministry of Economy 277, of 2018 (“ME Ordinance 277/18”), Ruling 11 began to have binding effects on the federal Public Administration.