Companies that make imports in Brazil face many taxes to complete the process of importation, what generates huge costs to the imported products to be sold in Brazilian market.
In fact, the imported products have to pay federal and state taxes (such as import tax, tax on manufactured products - "IPI", state sales taxes - "ICMS", social contributions as "PIS" and "COFINS"). Besides all these taxes, in each process of importation the taxpayer must pay what is called "TAXA SISCOMEX" ("SISCOMEX tax"), charged in a fixed amount.
This tax was created by Law 9.716/98 and it must be collected at a fixed amount by every import declaration issued and to be registered on the "SISCOMEX", which is a computer system exclusively used on the imports performed in Brazil (all the importation process is electronic and performed through this computer system).
The amount that used to be collected in each importation process was BRL 30.00 (US$ 15.00 approximately). However, in 2011, Brazilian Federal Government, through an executive order, promoted a huge raise on the tax, and the amount to be paid for each importation became BRL 185.00 (US$ 90.00 approximately). This raise corresponds to approximately 500% on the original amount that used to be taxed until 2011.
Considering that many companies perform many importations daily, in the end of each month the amounts paid regarding this tax reaches very high figures, what, in the end of the day, contribute to raise even more the costs connected to the import products.
Many taxpayers started to challenge this raise before Brazilian Judicial Courts, supported by a single argument : as it is a tax, the raise could not be implemented by a mere executive order, because Brazilian Constitution prescribes that is mandatory that any tax is created or raised by a law (formal law approved by Brazilian Congress). In the judicial law suits the taxpayer may request to avoid the taxation for the future importations and obtain a refund of the raise paid in the past (since 2011).
Despite the fact that Law 9.716/98 authorizes the Federal Government to yearly adjust the tax through the application of a monetary update, it become obvious that in this case we are not before a simple monetary adjustment but in fact a real raise that is not allowed by the law and must be cancelled by the Judicial Courts.
We believe that Brazilian Judicial Superior Courts will declare the unconstitutionality of this tax, avoiding that the costs of importation continues to grow in the Brazilian market, to permit that Brazil become more competitive in the international trade transactions.
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