STF Confirms Joint Liability of Representative of Foreign Carrier for Import Tax

The Federal Supreme Court (STF) unanimously declared that the rule establishing the joint and several responsability of the representative of the foreign carrier in Brazil for the payment of Import Tax is valid. This determination is laid down in the sole paragraph of article 32 of Decree-Law 37/1966 and was the subject of a challenge in Direct Action for Unconstitutionality (ADI) 5431, brought by the National Transport Confederation (CNT).

The CNT argued that the representative in Brazil does not participate in the maritime transport contract and therefore should not be held liable. However, the rapporteur of the case, Justice Gilmar Mendes, pointed out that both the Superior Court of Justice (STJ) and the Administrative Council for Tax Appeals (Carf) recognise the possibility of attributing such responsibility to the shipping agent.

This reinforces the importance of responsibilities and obligations being clearly defined in international transport contracts involving imports into Brazil. In addition, it is essential to determine which legislation will apply. Even so, regardless of the terms of the contract, Import Tax is always due, since the taxable event occurs automatically with the entry of the product into Brazilian customs territory.

Case law and context

The STJ, through Theme 389, had already consolidated the issue under the system of repetitive appeals, while Carf established Precedent 185 on the subject. These precedents reinforce the representative's connection to the import operation, and consequently his tax liability.

In addition, Justice Gilmar Mendes dismissed the arguments that the charge would be confiscatory, violate the ability to pay or free enterprise. He emphasised that there is a direct connection between the representative, the triggering event (the entry of the foreign product into Brazil) and compliance with the tax obligation.

Importance of Contractual Compliance

The STF's decision reinforces the importance of well-drafted contracts, with attention to the fine print, and diligent on Brazilian tax and customs regulations. To avoid legal or tax complications, it is essential to review and adjust international transport contracts, ensuring that all responsibilities are clear and that operations follow legal requirements.

Do you need support in adapting your contracts or reviewing your operations in line with Brazilian legislation? Our team of experts is ready to help. Contact us and guarantee the legal security of your business.