Source: Valor Econômico, 04/03/2009

The Federal Revenue Service has closed the siege to importers and exporters of goods that evade taxes in these operations, a practice classified as a misdemeanor crime. The tax authorities' efforts in this regard are seen in the increase in the agency's assessments in the last three years in relation to the topic. In 2008, the Revenue Service performed 15.688 assessments. This total exceeds three times the number of assessments registered in 2007, which corresponded to 5.034 and approximately seven times to the numbers of 2006, which corresponded to 1.916 assessments.
In the case of misdemeanor crimes, to file a claim means to lose or, as the tax authorities classify, to have the “loss” of the goods. In addition to this measure, the Federal Revenue Service provides the Public Prosecutor's Office (MP) with tax representations for criminal purposes, against company representatives or officers responsible for the import or export operation. The MP, in turn, can lodge a complaint to the courts against those responsible for the company. For this crime, the Penal Code establishes in its article 334 a sentence of one to four years of imprisonment.

The assessments increased as did the values ​​of the goods involved in the operations. There were R $ 248,7 million in goods in 2008. A great increase in relation to 2007, a period in which the assessments resulted in R $ 175,6 million and in 2006 to R $ 60,5 million.

The increase in inspections is attributed to greater specialization in the work of agents of the Federal Revenue, as stated by the agency's surveillance and repression coordinator, Osmar Expedito Madeira Junior. According to him, the IRS started to invest since the beginning of 2006 in the preparation and specialization of the personnel that works in the customs regions. From there, the divisions of surveillance and repression were created in each of the ten fiscal regions of the IRS to act directly in these inspection activities. "These people have been receiving continuous training, because the same logistics used for the crime of smuggling and embezzlement is also used for other crimes such as drug trafficking and arms," ​​he says.

According to the IRS, the sector that most suffered fines for misdemeanor crimes last year was cigarettes. Next is clothing, sunglasses, bags, toys, perfumes and shoes, in that order. Another sector that has attracted the attention of the Federal Revenue is that of medicines, which has already matched that of the media - which include CDs and DVDs - in volume of notices of misappropriation.

The lawyer Luiz Carlos Torres, partner at Demarest & Almeida Advogados, says that in the day-to-day of the office he has noticed an increase in the number of cases for misdirection and already advises four new cases that entered between 2007 and 2008. “The Federal Revenue Service it has been better equipped as international trade intensifies ”, he says. According to him, the fact that the company loses all the merchandise and that its representatives are at risk of responding to a criminal case can represent major inconveniences. This is because the criminal process itself already damages the image of the entrepreneur. In addition, this company leader is not always involved in the day-to-day operations of the company so that he is held responsible for what happened, which does not always involve bad faith on the part of those involved.

In spite of detecting the diversion of the merchandise, the Revenue in the assessment establish the amount of taxes that have not been paid, in general the criminal process is not finalized with the payment of taxes by the accused, as occurs in other cases of tax evasion. This is because in many cases the Justice has understood that it is not a tax crime, but a crime against the public administration, framed in the Penal Code. This understanding, however, is not unanimous and has won opponents in the Judiciary. Some decisions in the Superior Court of Justice (STJ) brought the understanding that the crime of misappropriation has the same nature as crimes against the tax order - because it is a kind of tax evasion, and thus there may be a locking of the criminal action with the payment of the due tax.

Among these decisions, there is one of December of last year of the Sixth Panel of the STJ, in which the rapporteur, Minister Jane Silva, cites in her vote some precedents of the STJ and the Federal Supreme Court (STF) that understand that the criminal process for misdirection it can only take place after the final judgment at the administrative level. It also cites precedent in the STJ that treats embezzlement as a tax crime and opens the possibility of extinction of the process with full payment of the tax due. The minister was accompanied by the majority of the class. For lawyer Luiz Guilherme Moreira Porto, from Reale and Moreira Porto Advogados "this position, although it does not reflect, at least for now, a unanimous position, represents undeniable progress in relation to the issue of criminal treatment of misdirection". The lawyer has closely followed the increase in criminal proceedings of this type. In the office alone, of which he is a partner, last year there were ten new cases. Much more than the average of one or two cases per year that they had been receiving. Among those he advises, the problem has been more frequent in sectors such as computer science and electronics and involve from thousands of reais to billions of reais.