The penalty of forfeiture of property is one of the most severe and extreme penalties contained in Brazilian law. Despite its confiscatory nature, the Federal Supreme Court (STF) has already abstractly recognized its validity and compliance with the current Federal Constitution (RE 251.008-AgR/DF, Opinion drafted by Justice Cezar Peluso, First Panel, published in the Official Gazette of the Judiciary on June 16, 2006).

However, as this is an extreme penalty, application thereof must be preceded by a rigorous examination of the factual circumstances and their classification within the restricted scenarios that legitimize it, lest it run contrary to the principle of legality.

In the exhaustive list of scenarios that allow for the penalty of forfeiture, article 689 of the Customs Regulation contemplates unjustified deviation from route during the customs transit of the imported good:

Article 689. The penalty of forfeiture of the merchandise is applied in the following scenarios, as they constitute damage to the public purse (Decree-Law No. 37, of 1966, article 105; and Decree-Law No. 1,455, of 1976, article 23, head paragraph and paragraph 1, as amended by Law No. 10,637, of 2002, article 59):


XVII - foreign, in transit in the customs territory, when the land vehicle driving it is diverted from its legal route, without justified grounds;

It was on the basis of that provision that the customs authorities imposed the penalty of forfeiture on a given taxpayer on the grounds that it intended to mislead the good imported after finding the deviation during customs transit.

According to article 334 of the Penal Code, however, misleading only occurs in the case of an act to “evade, in whole or in part, the payment of a duty or tax due for the entry, exit, or consumption of merchandise."

That is, in order to find misleading, the Penal Code textually requires that the intention be to evade the payment of tax. Therefore, application of the penalty of forfeiture based on an allegation of misleading will necessarily require the customs authority to demonstrate the act of evading the payment of tax.

In a recent case we handled, the Federal Court of Appeals for the 2nd Circuit (TRF-2) brought for judgment a case litigating precisely a tax assessment issued by the customs authorities on the grounds that a particular taxpayer intended to mislead an imported good by virtue of deviation from route found during the customs transit of the good.

Leaving aside a discussion of the reasons that led to the deviation from route, the fact is that the TRF-2 decided to dismiss the forfeiture because the customs authority could not prove the taxpayer's intent to evade payment of the tax due.

To ratify the understanding of the TRF-2, the prevailing opinion emphasized that the presumption used by the customs authorities could not stand up to the set of evidence presented by the taxpayer, which was even sufficient to explain proper justification for the deviation from the route.

In the case examined, the good subject to forfeiture had been duly imported under a special customs regime, with the signing of a consent and presentation of a guarantee of the taxes suspended.

In support of its decision, the TRF-2 further noted that while the route stipulated had not been observed, there is a more specific penalty for punishing deviation from routes during customs transit. Thus, the court reaffirmed the understanding that damage to the public purse cannot be presumed indistinctly for the purpose of applying or maintaining such an extreme penalty.