Autuações fiscais nas importações

Autuações fiscais nas importações

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Por Rafael Gregorin

O tema importação sempre foi visto com muita cautela pelos contribuintes brasileiros, não só por toda a burocracia enfrentada para viabilizar a importação de mercadorias, mas, ainda, em virtude dos frequentes questionamentos impostos pela Receita Federal do Brasil.

Existem atualmente três diferentes métodos de importação, quais sejam: (i) importação direta, que é aquela em que a própria empresa efetua a importação de mercadorias por sua conta e risco; (ii) importação por “encomenda”, na qual determinada empresa adquire as mercadorias com seus próprios recursos e, ainda, é a responsável por efetuar todo o trâmite aduaneiro, sendo que já há uma empresa local encomendante pré­determinada; e (iii) importação “por conta e ordem de terceiro”, que é aquela em que a empresa adquirente das mercadorias contrata um serviço de uma empresa importadora, que promoverá todos os trâmites aduaneiros.

A principal diferença entre a importação por encomenda e a por conta e ordem é que na primeira os recursos pertencem ao próprio importador, ao passo que na segunda os recursos são adiantados pelos reais adquirentes das mercadorias.

Na maioria das vezes sequer há falta de pagamento de tributos, sendo as multas aplicadas por supostas irregularidades

Esses métodos de importação foram criados pelo governo brasileiro com o intuito de evitar a interposição fraudulenta de terceiros na importação, que nada mais é do que a tentativa de ocultar o verdadeiro adquirente das mercadorias por meio de empresas laranjas. Tal prática é absolutamente condenável por permitir a sonegação de tributos, lavagem de dinheiro e, ainda, o subfaturamento das transações.

É inegável que esses métodos de importação, apesar de terem tornado os trâmites de importação um tanto quanto burocráticos, auxiliaram as autoridades fiscais brasileiras a combater diversas práticas fraudulentas e criminosas.

No entanto, o que se tem visto na prática é uma tendência das autoridades fiscais em impor tais métodos de importação de forma indiscriminada, sem qualquer investigação mais aprofundada do real contexto das transações, ensejando a aplicação de multas milionárias contra importadores e adquirentes de boa-­fé.

Os casos clássicos frequentemente questionados são as importações diretas, as quais têm sido tratadas como importações por encomenda pela Receita Federal.

Isso porque, no entendimento das autoridades, determinados aspectos gerais como o conhecimento prévio dos importadores de possíveis compradores das mercadorias ou, ainda, o curto espaço de tempo entre o desembaraço e a venda no mercado local, já seriam suficientes para caracterizar essas importações como sendo “por encomenda”.

Ao taxar as importações diretas como por encomenda, a Receita Federal exige do suposto real adquirente das mercadorias multa de 100% do valor aduaneiro (artigo 23 do Decreto-­Lei 1.455/76), sendo que a empresa importadora também é incluída como responsável solidária pelo pagamento dessa penalidade. Como se não bastasse, a importadora é punida com multa de 10% sobre o valor das operações em virtude da suposta cessão de seu nome para acobertar os reais adquirentes das mercadorias (artigo 33 da Lei nº 11.488/07).

Ou seja, os contribuintes têm se deparado com multas que totalizam 110% do valor total das mercadorias importadas, na medida em que as autoridades, sem evidenciar a existência de fraude ou simulação, descaracterizam importações diretas realizadas de forma totalmente regular para, com base em meros indícios, enquadrá­-las como sendo por encomenda.

É importante destacar que na maioria das vezes sequer há falta de pagamento de tributos, sendo que as multas são aplicadas em virtude de supostas irregularidades que poderiam vir a ocorrer ­ as quais, como dito, raramente são comprovadas pelo fisco.

As regras que versam sobre importação por encomenda são claras no sentido de que elas ocorrem apenas quando há contrato prévio firmado entre a importadora e o encomendante e há obrigação contratual de a importadora entregar os produtos importados para o encomendante.

Nas recentes autuações efetuadas pela Receita Federal não só inexistem tais condições como, ainda, fica evidente que a empresa importadora é quem arcou com todos os custos das importações e assumiu os correspondentes riscos.

Portanto, meros indícios como o conhecimento pelo importador de possíveis adquirentes no mercado local ou o curto espaço de tempo entre o desembaraço das mercadorias e a posterior venda jamais poderiam levar o Fisco a concluir pela existência de sérias acusações de fraude e simulação capazes de ensejar as multas acima citadas.

Nunca é demais lembrar que nos dias atuais é extremamente normal que mercadorias importadas sejam comercializadas logo após o respectivo desembaraço, na medida em que os custos de estocagem são extremamente consideráveis e a competição cada vez mais acirrada. Além disso, é esperado que uma empresa que importa produtos conheça seu mercado local e já possua potenciais clientes.

A atuação das autoridades fiscais para combater transações simuladas e fraudulentas que visam obter vantagens ilícitas é extremamente elogiável. O que não se pode admitir, contudo, é a descaracterização infundada dos métodos de importação utilizados pelos contribuintes que atuam legitimamente no âmbito aduaneiro. A imposição dessas elevadas multas por parte da Receita Federal precisa ser realizada de forma responsável e amparada em fatos incontestes.

Rafael Gregorin é mestre em direito tributário pelo Insper (SP) e Kings College London (U.K.) e advogado associado à área tributária de Trench, Rossi e Watanabe Advogados

Este artigo reflete as opiniões do autor, e não do jornal Valor Econômico. O jornal não se responsabiliza e nem pode ser responsabilizado pelas informações acima ou por prejuízos de qualquer natureza em decorrência do uso dessas informações

Fonte: Valor Econômico
Acesso: 27 maio 2016

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  108. Today, I went to the beach with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She placed the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is completely off topic but I had to tell someone!

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