Importers need to be aware of a recent CARF precedent that may positively impact relevant assessments in customs litigation.
In a ruling handed down in early 2026, CARF ruled out the application of the traditional 1% fine on the customs value of imports, due to the revocation promoted by LC No. 227/2026.
To provide some context, the 1% fine on the customs value of the goods was historically applied based on Article 84 of Provisional Measure No. 2.158-35/2001, combined with Article 69 of Law No. 10.833/2003, in cases of violations related to incorrect tax classification or incomplete description of imported goods in the import declaration. In these situations, regardless of whether the error in filling out the form resulted in differences in the amounts to be collected, the penalty was automatically imposed.
With the enactment of LC No. 227/2026, which regulates tax reform, the customs fine was expressly revoked. Although the law came into force as of its publication in the Federal Official Gazette on January 15, 2026, CARF applied the new rule retroactively, completely annulling the penalty. In addition to the lack of legal basis for maintaining the fine, the principle of retroactivity of the most beneficial sanctioning rule for the taxpayer was applied.
Given this scenario, 3 key points of attention stand out:
1. Scope of retroactivity of the rule: The application of the law to a past act or fact may occur when the new law no longer defines it as an infraction or when it imposes a less severe penalty than that provided for in the legislation in force at the time of its practice. This is the rule provided for in the National Tax Code, provided that the act has not been judged definitively. Thus, ongoing administrative proceedings, including those pending judgment by CARF, tend to be directly impacted by the revocation of the fine.
2. Impact on tax foreclosures: Companies that are already facing tax enforcement proceedings, whether active or suspended, related to this penalty may consider the possibility of discussing the extinction of the fine based on the more beneficial supervening legislation. Depending on the stage of the proceedings, provided that no final judgment has been rendered, the cancellation of the fine may be raised, especially when the collection is based exclusively on this penalty, which no longer exists in the legal system. It should also be noted that the nullity of the fine may result in the complete nullity of the active debt certificate and the consequent extinction of the tax enforcement.
3. Impact of the revocation of the fine on ongoing tax assessment notices: In several customs assessments, the 1% fine was applied autonomously, without the concomitant requirement of taxes, especially in cases of divergence in tax classification or incomplete description of goods in the import declaration. In these cases, the revocation of the penalty by LC No. 227/2026 may lead to the legal basis for the assessment being undermined, enabling the tax assessment notice to be canceled in its entirety.
On the other hand, when the assessment also involves tax differences or other penalties, the withdrawal of the 1% fine does not necessarily invalidate the entire assessment, but requires a reassessment of its composition, with the exclusion of the revoked penalty and possible resizing of the remaining requirement.
In summary, the CARF precedent reinforces the immediate effects of the changes brought about by the tax reform on administrative proceedings still in progress, which represents a significant change in the customs litigation scenario. The revocation of the 1% fine by LC No. 227/2026, coupled with the recognition of its retroactive application in administrative proceedings still in progress, tends to generate a movement to review assessments and reassess tax liabilities related to imports.
In this context, it is recommended that importers revisit their tax assessment notices, administrative proceedings, and any judicial collections to assess the impacts of this legislative and jurisprudential change.
