[Free Translation]The Superior Court of Justice and the Federal Regional Court of the 4th Region have handed down decisions in the sense that it is illegal to inclusion of Terminal Handling Charges (THC) in the import tax calculation basis. According to the Law, THC is the fee charged for movement activity comprising the receiving, checking, internal transport, opening packages for customs inspection, handling, storage and delivery as well as the loading and unloading of vessels when performed by port rigging.
The inclusion of these costs in the import tax calculation basis was determined by Normative Ruling No. 327/03 of the Federal Revenue of Brazil, on the grounds that the International Agreement on Customs Valuation authorizes the inclusion of wharfage costs in the calculation basis the tax.
However, according to the arguments of taxpayers, which has been upheld by the judiciary, the basis of calculation of the import duty should correspond to the customs value, as provided in the General Agreement on Tariffs and Trade (GATT), of which Brazil is a signatory and may not be included in the customs value, the subsequent costs to the arrival of the goods in the country. It is worth noting that the cost of wharfage in import vary according to the type, specialty and the fragility of the concerned load. These costs may reach 1% of the transaction value.
Thus, given the current position of the judiciary on the matter, it is recommended to taxpayers (importers) get through the filing of an injunction amounts unduly paid in the last five years and obtain a judicial declaration to reduce the tax basis of Import Duty for future import operations.
