Customs law — the border decides the margin

What customs law is

Customs law is the body of rules that governs the entry and exit of goods from the national territory, spanning three dimensions that operate together: the administrative control of foreign trade (who may import, what requires a license, how goods are inspected), customs clearance (the procedure that releases the cargo) and the taxation levied on import and export. It is the discipline that sets how much is paid at the border — and what happens when something goes wrong.

This dual nature — administrative and tax — is not an academic detail: it has a direct consequence for the defense. Sanctions tied to the control of the flow of goods (retentions, forfeiture, control fines) follow their own rules, deadlines and instances, distinct from those of the tax credit. The STJ consolidated exactly this distinction when addressing the nature of customs infractions in Theme 1293, examined further on in the litigation section.

Who regulates the Brazilian customs authority

Three institutional blocks share the matter. The Federal Revenue Service exercises customs control proper: operator accreditation, clearance, inspection, valuation and sanctions. Secex/MDIC and the Camex (Gecex) handle trade policy: TEC rates, the ex-tariff, drawback in the modes administered by Secex, and trade defense. And the consenting bodies — sanitary, agricultural, metrological — condition the licensing of specific products. A well-structured import operation must clear all three filters without friction.

Why this is margin management, not red tape

For the company that imports inputs, machinery or resale goods, the customs cost is a structural part of the final price. The difference between operating with and without a special regime — between paying all five taxes in full at clearance or lawfully suspending them — often exceeds the net margin of the product itself. At the other end, the typical errors (incorrect NCM, poorly determined customs value, inadequate accreditation, hidden intervener) generate assessments that accumulate silently and detonate all at once, frequently with the cargo retained. Good customs work operates on both fronts: it lowers the structural cost and shields the operation against litigation.

Legal framework: from DL 37/66 to customs valuation

The core of Brazilian customs law is Decree-Law 37/1966 — the law that structures the Import Duty (the triggering event is the entry of foreign goods into the national territory) and organizes the customs services. The text remains in force, deeply reformed by DL 2.472/1988, which rewrote the tax base to align it with the GATT standard. On that foundation, Decree 6.759/2009 — the Customs Regulation (RA) — consolidates the administration of customs activities and the inspection, control and taxation of foreign-trade operations.

Customs valuation: the AVA-GATT

When the II rate is ad valorem, the tax base is the customs value, determined under the WTO Customs Valuation Agreement (AVA-GATT 1994), promulgated in Brazil by Decree 1.355/1994. The agreement sets out six methods of mandatory sequential application — the first and preferred one is the transaction value, the price actually paid or payable for the goods. At the sub-statutory level, the matter is governed by RFB Normative Instruction 2.090/2022, amended by RFB Normative Instruction 2.326/2026, which incorporated recent instruments of the WCO Technical Committee on Customs Valuation — including valuation in cryptocurrency operations and the case studies on the interaction between customs valuation and transfer pricing.

This interface is one of the most sensitive points for multinational groups: the same intercompany price that must be high enough to satisfy the transfer pricing rules for income tax tends to be challenged as too high (or too low) at customs — two controls over the same price, with opposite logics.

Handling costs outside the customs value

The most economically significant recent update to the RA was Decree 11.090/2022, which amended art. 77, II, to exclude from the customs value the loading, unloading and handling costs incurred within the national territory — the handling costs (THC). The change ended a long-standing dispute and reduced the base of the II and of the whole cascade computed on it. Companies that paid taxes on a base inflated by handling costs before the change hold a potentially reviewable overpayment — a front that connects directly with recovery of tax credits.

Customs clearance, inspection channels and the DUIMP era

Import customs clearance is the procedure by which the Federal Revenue Service verifies the accuracy of the declared data against the goods actually imported and authorizes their release to the importer. It is governed by RFB Normative Instruction 680/2006, which organizes the sequence: registration of the declaration, risk assessment, inspection and release.

After registration, the declaration is assigned to one of four inspection channels (art. 21): green — automatic release, with no documentary examination nor physical inspection; yellow — documentary examination; red — documentary examination and physical inspection; and gray — documentary examination, physical inspection and a special control procedure to investigate indications of fraud, including as to the declared value. On the export side, processed through the DU-E since RFB Normative Instruction 1.702/2017, there are three channels: green, orange (documentary) and red.

Gray channel: when clearance becomes an investigation

The gray channel is not inspection — it is investigation. The goods are held while the authority opens a special procedure to investigate fraud, typically subfacturing, documentary falsity or interposition of third parties. It is the point at which clearance stops being logistical routine and starts to require immediate technical defense: the framing the authority gives the case at that moment (valuation error or willful fraud) determines whether the company will face a collection of differences or the forfeiture penalty — the distinction is drawn in the litigation section.

DUIMP and the Single Portal: the 2026 migration

Clearance is changing platform. The DUIMP (Single Import Declaration), registered on the Single Foreign Trade Portal, gradually replaces the DI of the legacy Siscomex — the legal basis remains within RFB IN 680/2006 itself, amended by RFB Normative Instruction 2.226/2024, and the migration is staggered by mode, consenting body and regime. A sign of the consolidation: in June 2026 the Federal Revenue Service opened a public consultation (18/06 to 08/07/2026) on a new normative instruction that will replace RFB IN 680/2006 and rewrite the clearance framework around the Single Portal.

For the importer, the migration is not only a change of system: the DUIMP alters the moment and the form of reporting information to the State, and cadastral and classification errors become more traceable. Reviewing master-data compliance before your operation’s block migrates is the cheap way to avoid tomorrow’s litigation.

The 5 import taxes and the order of calculation

Five taxes are levied today on the import of goods: the Import Duty (II), the IPI on imports, the PIS/Pasep on imports, the COFINS on imports and the ICMS on imports. Each has its own triggering event, tax base and regime — and the calculation is in cascade: the base of one contains the result of the previous.

The order of calculation

The correct sequence matters because each error propagates to the following taxes:

• 1. Customs value — determined by the AVA-GATT methods (as a rule, the transaction value), already net of handling costs (Decree 11.090/2022).
• 2. II = customs value × TEC rate (or the ex-tariff rate, where granted).
• 3. IPI = (customs value + II) × TIPI rate.
• 4. PIS/COFINS on imports = customs value × (2.1% + 9.65%) for goods — plus the COFINS surcharge of 0.6 p.p. in 2026, where the NCM appears in the legal list (Law 10.865/2004, art. 8, §§ 21 and 21-A).
• 5. ICMS — gross-up: (customs value + II + IPI + PIS + COFINS + Siscomex fee and other customs charges) ÷ (1 − internal rate).

The PIS/COFINS-on-imports base is the customs value alone

The STF held in RE 559.937 (Theme 1 of general repercussion, decided on 20/03/2013) that it is unconstitutional to include the ICMS and the contributions themselves in the base of the PIS/COFINS on imports — Law 12.865/2013 adjusted art. 7, I, of Law 10.865/2004, which today requires the calculation on the customs value, and nothing more. Importers still paying on an inflated base — or who paid over the last five years — hold a recoverable overpayment.

ICMS on imports: clearance and non-habituality

Two points settled by the STF frame the ICMS on imports: collection at the moment of customs clearance is legitimate (Binding Precedent 48) and, after EC 33/2001, the tax applies even to imports by an individual or legal entity that is not a habitual taxpayer (RE 439.796, Theme 171). The gross-up — the tax forms part of its own base — is set out in art. 13, § 1, I, of Complementary Law 87/96 and is what makes the ICMS weigh more than the nominal rate suggests.

Special customs regimes: paying less with legal certainty

The special customs regimes exist for a single purpose: to suspend, reduce or refund the import taxes when the operation performs an economic function the State wants to foster — exporting, investing in capital goods, storing, testing, exploring for oil. Choosing (and maintaining) the right regime is the highest-leverage decision in foreign trade: it changes the cost of the whole operation, not of a single invoice.

Drawback: the exporter’s input pays no tax

Drawback relieves the inputs used in goods to be exported, in three modes. Under suspension (Law 11.945/2009, art. 12), the import — and also the domestic acquisition — of inputs occurs with suspension of II, IPI, PIS/COFINS and PIS/COFINS on imports, conditional on the export commitment; since 2023, art. 12-A (Law 14.440/2022) extends the PIS/COFINS suspension to services directly and exclusively linked to the export. Under exemption (Law 12.350/2010, art. 31), the company replenishes the stock of goods equivalent to that already used in exported goods, with exemption of II and a zero rate on the others. Refund (DL 37/66, art. 78) returns taxes paid — a residual mode that, in practice, has fallen into disuse. Suspension and exemption are administered by Secex (Secex Ordinance 44/2020 and Joint Secint/RFB Ordinance 76/2022). A 2025 note: MP 1.309/2025 (Sovereign Brazil Plan) even authorized an exceptional extension of drawback deadlines for exporters hit by the U.S. tariffs, but it lapsed without being converted into law in December 2025 — a closed episode.

Ex-tariff: reduced II for machinery with no domestic equivalent

The ex-tariff (Gecex Resolution 512/2023, amended by Resolutions 760/2025 and 853/2026) temporarily reduces the II rate — in recent practice, as a rule to 0% — for capital goods (BK) and IT and telecommunications goods (BIT), and their parts and pieces, with no equivalent domestic production. The grant is case by case, preceded by a public consultation: to defeat the request, a domestic manufacturer must prove, with technical and tax documentation, that it produces a good capable of performing the essential functions of the equipment. The reduced rate and the term of validity are set in the granting resolution, and renewal may be requested up to 180 days before expiry. For capex-intensive projects, the ex-tariff is often the difference between importing and postponing the investment.

RECOF: manufacturing with suspended taxes

RECOF (RFB Normative Instruction 2.126/2022, which unified the former Recof and Recof-Sped modes into a single rule) suspends II, IPI and PIS/COFINS (on imports) on inputs destined for the manufacturing of products aimed mostly at export. The central commitment is a minimum annual export equivalent to 50% of the value of the goods admitted to the regime, valid for 1 year, automatically renewable for an equal period. The counterpart is compliance: integrated computerized control (or EFD with an up-to-date Block K) and permanent access of the authority to the systems.

Bonded warehouse and temporary admission

The bonded warehouse (RA, art. 404; RFB IN 241/2002) allows foreign goods to be stored in a customs-controlled area with suspension of the federal taxes — a term of 1 year, extendable up to a total of 2, and in special situations up to 3 years; once the term lapses, the goods have 45 days to be assigned a destination. Temporary admission (RA, art. 353; RFB Normative Instruction 1.600/2015) fully suspends the taxes on goods that enter without economic use (fairs, tests, events); where there is economic use — provision of services or production — one pays proportionally 1% of the taxes due per month or fraction of the grant term (RA, art. 373, § 2). It is the natural regime of international equipment rentals and works using foreign machinery.

REPETRO-SPED: the long window of oil and gas

Repetro-Sped (Law 13.586/2017, arts. 5 to 7; RFB Normative Instruction 1.781/2017) suspends the federal taxes on the import and acquisition of goods destined for oil and natural gas exploration and production activities, converted into exemption or a zero rate — applicable to triggering events occurring through 31/12/2040. It is a rare planning horizon in Brazilian law: fourteen years of a known rule.

Outside the technical list of special regimes, the Manaus Free Trade Zone performs an analogous function — the entry of foreign goods into the ZFM is exempt from II and IPI (DL 288/1967, art. 3, with specific exceptions) — and gained its own chapter in the tax reform, addressed further on.

RADAR accreditation and OEA certification

Before importing anything, the company must be accredited to operate in foreign trade — the RADAR, governed by RFB Normative Instruction 1.984/2020, with automated analysis by the Habilita system on the Single Portal. The mode sets the import ceiling per half-year and, if wrong, freezes the operation at the worst possible moment.

• Express — no value limit; restricted to public companies, mixed-capital companies and publicly traded corporations (and wholly-owned subsidiaries).
• Limited — up to USD 50 thousand or up to USD 150 thousand per half-year on imports, according to the company’s estimated financial capacity.
• Unlimited — above USD 150 thousand per half-year.

On the export side there is no value limit in any mode. Two current points of attention: RFB Normative Instruction 2.292/2025 (of 18/11/2025) reformed the representation regime — broadening the roster of who may act for the importer, including legal entities in clearance acts — and reinforced the ex officio review of the accreditation with a trigger for the customs-fraud combat procedures. And, on the DUIMP schedule, holders under the Limited Radar are the last major block to migrate (01/12/2026): whoever operates in that mode should prepare the transition now.

OEA: the express lane for those who prove reliability

The Authorized Economic Operator program (RFB Normative Instruction 2.154/2023, in force since 01/08/2023 in place of IN 1.985/2020) certifies operators that prove rigorous security and compliance criteria, in two modes: OEA-Security (supply-chain security) and OEA-Compliance (customs compliance). The return is operational and measurable: less risk assessment toward the inspection channels, more predictable timing and priority treatment — a direct competitive advantage for those who import in volume. The certification, however, is a governance project: it requires mapping processes, risks and internal controls before filing.

Customs litigation: forfeiture, fines and defense theses

Customs litigation has its own rules — and the harshest of sanctions: the forfeiture penalty, provided for in DL 37/66 (art. 105) and DL 1.455/76 (art. 23), which punishes with the loss of the goods the infractions that constitute damage to the Treasury. Where the goods are not located, were consumed or resold, the forfeiture converts into a fine equal to 100% of the customs value (DL 1.455/76, art. 23, § 3).

Forfeiture now has an appeal: the CEJUL era

Since Law 14.651/2023, the proceeding for the forfeiture of goods, vehicles and currency is tried in two instances — the end of single-instance adjudication, in alignment with the Revised Kyoto Convention. The proceeding runs at the CEJUL (Customs Penalties Adjudication Center, created by Ministry of Finance Normative Ordinance 1.005/2023): 20-day challenge, single-judge decision at first instance and a 20-day appeal to the Appellate Chambers. A detail that changes strategy: forfeiture litigation does not run through the CARF — the CARF remains competent for the tax credit (taxes and ex officio fines), while forfeiture has its own track.

Fraudulent interposition and lending of name

Fraudulent interposition (DL 1.455/76, art. 23, V) is the concealment of the real buyer, seller or party responsible for the operation through fraud or simulation. Paragraph 2 creates a rebuttable presumption: absent proof of the origin, availability and transfer of the resources employed, interposition is presumed — and the defense is built exactly there, documenting the financial trail of the operation. Two distinct sanctions coexist: the hidden intervener answers for the forfeiture; whoever lends the name to cover for third parties answers for a fine of 10% of the value of the operation, never below BRL 5,000 (Law 11.488/2007, art. 33).

A current note: the former fine of 1% of the customs value for an NCM classification error was revoked by Complementary Law 227/2026, which replaced it with a regime of fines for incorrect or omitted information tied to the ancillary obligations of the IBS/CBS (art. 341-G of Complementary Law 214/2025) — and reignited the thesis of benign retroactivity (National Tax Code, art. 106, II) for the 1% assessments still pending.

Undervaluation vs subfacturing: the divide is intent

The most important distinction in value litigation: undervaluation is the incorrect application of the AVA-GATT methods without falsity — the consequence is the recomposition of the customs value by the substitute methods and the collection of the tax differences, with no forfeiture; mere doubt about the price authorizes valuation, it does not characterize fraud. Subfacturing is willful documentary falsity: where the falsity is material (an adulterated invoice), STJ case law admits forfeiture (DL 37/66, art. 105, VI); where it is ideological, the fine of 100% of the price difference applies (MP 2.158-35/2001, art. 88, sole paragraph). And the STJ has already resolved the attempt to stack sanctions: in AgInt in the EDcl in REsp 1.825.186/RS (2nd Panel, reporting Justice Herman Benjamin, judged 04/08/2022, DJe 01/12/2022), it rejected the cumulation of the qualified ex officio fine of 150% with the 100% fine in lieu of forfeiture in subfacturing — subfacturing, on its own, does not warrant forfeiture, and the qualified fine punishes the conduct sufficiently.

Precedents that frame the defense

Four current references guide the strategy: (i) the STF, in Theme 1042 (RE 1.090.591), held it constitutional to condition clearance on the payment of a tax difference determined by arbitration — holding the goods until payment, in that context, is not a political sanction; (ii) the STJ, in Theme 1293 (repetitive, 1st Section, 2025), held that the 3-year intercurrent limitation (Law 9.873/99) reaches the administrative proceedings of customs infraction of a non-tax nature stalled for more than three years — a powerful lever against old customs-control fines; (iii) STJ Theme 1041 (forfeiture of the carrier’s vehicle) was cancelled in November 2024, with no binding thesis — but the Panels’ case law continues to require proof of the owner’s bad faith and proportionality between the value of the vehicle and that of the cargo (AREsp 2.473.772/RS); and (iv) on the tax plane, Theme 1 and Binding Precedent 48 of the STF, seen in the previous section, continue to delimit the tax bases on imports.

The tax reform on imports: IBS, CBS and the Selective Tax

The tax reform rewrites the taxation of imports from within the clearance itself. Complementary Law 214/2025 establishes the levy of IBS and CBS on the import of goods and services by any importer — including an individual and without habituality (art. 63). For tangible goods, the triggering event is the entry of goods of foreign origin into the national territory (art. 65), deemed to occur at clearance for consumption; payment is due by the delivery of the goods, with the option to anticipate it to the registration of the declaration (art. 76). The tax base is the customs value plus the II, the Selective Tax and the other charges — and the 2026 regulation (CGIBS Resolution 6/2026 and Decree 12.955/2026) integrated the payment into the processing of the import declaration itself, converging with the DUIMP.

The Selective Tax at clearance

The Selective Tax (Complementary Law 214/2025, art. 409) is also levied on imports: the triggering event reaches the entry of goods harmful to health or the environment and occurs at customs clearance (art. 412). It is single-stage, with no right to credit — unlike the IBS/CBS — and forms part of the base of the IBS and the CBS on imports, which amplifies its real weight in the cascade.

The special regimes survive — adapted

Complementary Law 214/2025 preserved the suspensive logic of the customs regimes in the new system (the block of arts. 84 to 98): suspension of the IBS/CBS in customs transit (art. 84) and in the deposit and temporary-stay regimes; on temporary admission for economic use, the payment is proportional to the length of stay (art. 88); and drawback, for IBS/CBS purposes, comes to operate only in the suspension mode. Whoever structures a special regime today must design it already in a double layer: legacy taxes on one side, IBS/CBS on the other.

Manaus Free Trade Zone: differential preserved through 2073

On imports via Manaus, the starting point remains DL 288/1967 (art. 3): entry of foreign goods into the ZFM exempt from II and IPI, with specific exceptions (weapons, tobacco, alcoholic beverages, passenger automobiles and perfumery). The constitutional guarantee runs through 2073 (ADCT, arts. 40, 92 and 92-A). In the reform, the ZFM has its own block in Complementary Law 214/2025 (arts. 439 to 457): exclusive accreditation via Suframa (art. 442), a presumed IBS credit of 50% of the rate on the import of tangible goods destined for in-person resale in the ZFM (art. 444) and the selective retention of the IPI as an instrument to protect local production — which is precisely why the IPI is zeroed in 2027 for the rest of the country, except for the products with incentivized manufacturing in the ZFM.

How TaxUp works in customs law

The TaxUp team treats customs as part of the company’s total tax equation — not as a logistical silo. The responsible Consultant runs the three fronts end to end, from diagnosis to defense, without delegating the technical decision.

Who benefits most

Three profiles concentrate the return of well-done customs work. Consumer-goods manufacturing, which imports inputs and machinery in volume — where drawback, ex-tariff and RECOF change the structural cost of production. Exporting agribusiness, a natural user of drawback and of the classification and valuation discussions on inputs. And multinationals with a Brazilian operation, which live the daily friction between intercompany prices, customs valuation and transfer pricing — and for which the IBS/CBS turn on imports demands a redesign of the international supply flow already in 2026.

The method is the same on every front: the strategy is discussed with the client before any filing — pros, cons, deadlines and risks made explicit. TaxUp does not sell off-the-shelf regimes: each foreign-trade operation has its own design of exposure and opportunity, and the diagnosis exists to reveal it before the authority does.