The Brazilian Federal Revenue Service (Receita Federal do Brasil — RFB) released, on August 10, 2026, Cosit Internal Consultation Ruling (Solução de Consulta Interna) No. 4, dated August 3, 2026, which defines how customs authorities must treat the 1% penalty on the customs value provided for in Article 711 of the Brazilian Customs Regulations (Decree No. 6,759 of February 5, 2009) following the repeal of its statutory basis by Complementary Law No. 227 of January 13, 2026. The consultation was submitted by the General Coordination Office of Customs Administration (Coana) in light of the operational uncertainty faced by the teams responsible for customs clearance, post-clearance review, and audits with respect to pending assessments, amounts already paid, and assessments under challenge.
The penalty, imposed for more than two decades on tariff classification errors, on errors in the quantity stated in the statistical measurement unit, and on the omission or inaccuracy of information provided in the customs declaration, was grounded in Article 84 of Provisional Measure No. 2,158-35 of August 24, 2001 and in Article 69 of Law No. 10,833 of December 29, 2003, both repealed by Article 181, II and III, of Complementary Law No. 227/2026. According to Cosit, the effects of the repeal vary depending on whether the relevant violation is tax or administrative in nature, in line with the position established by the Superior Court of Justice (STJ) under Theme No. 1,293, decided under Brazil’s repetitive appeals procedure.
The main aspects of the Internal Ruling, and its practical effects for importers, exporters, and beneficiaries of special customs regimes, are examined below.
Why Does the 1% Penalty No Longer Apply to Conduct After January 13, 2026?
The imposition of penalties is subject to the principle of strict legality under Article 97 of the Brazilian National Tax Code (Código Tributário Nacional — CTN). Once the statutory provisions supporting the penalty were repealed, the regulatory provision cannot stand on its own. For that reason, Cosit concluded that the penalty under Article 711 of the Customs Regulations may not be applied to conduct occurring on or after January 14, 2026, the date on which Complementary Law No. 227/2026 was published.
The Internal Ruling also rejected the immediate replacement of the extinguished penalty by the new penalty under Article 341-G, XIX, of Complementary Law No. 214 of January 16, 2025, inserted by Complementary Law No. 227/2026 itself into the penalty framework for ancillary tax obligations of the new Goods and Services Tax (IBS), levied at the state and municipal levels, and the federal Contribution on Goods and Services (CBS). The new violation has its own elements and quantification criteria, does not fully reproduce the repealed provisions, and still depends on implementing regulations: Joint Act RFB/CGIBS No. 1/2025 did not include customs declarations among the electronic tax documents of the IBS and the CBS and left foreign trade matters to future rules. Until those regulations are issued, the penalty under Article 341-G, XIX, cannot replace the repealed penalty in the situations examined in the Internal Ruling.
What Is the Role of STJ Repetitive Appeal Theme No. 1,293 in Cosit’s Reasoning?
The retroactive application of more lenient legislation (retroatividade benigna) under Article 106, II, “a”, of the CTN, which requires the new law to be applied to past conduct when it ceases to treat that conduct as a violation, reaches only violations that are tax in nature. In the judgment of Special Appeals No. 2,147,578/SP and No. 2,147,583/SP (Repetitive Appeal Theme No. 1,293), the STJ held that customs violations do not form a uniform category. They are administrative in nature when the rule is primarily aimed at controlling the international movement of goods or the regularity of customs services, and tax in nature when the obligation breached is directly and immediately intended for the assessment or collection of the taxes imposed on the transaction.
Applying that test to each situation covered by Article 711, Cosit concluded that:
- the violations under items I and II (tariff classification errors and errors in the quantity stated in the statistical measurement unit), grounded in Article 84 of Provisional Measure No. 2,158-35/2001, are tax in nature, because they directly affect the identification of the goods and the calculation of the taxes due, even where the error does not result in an additional assessment;
- the violations under item III (omission or provision of inaccurate or incomplete information), grounded in Article 69 of Law No. 10,833/2003, are presumed to be administrative in nature, because they primarily serve to define the appropriate customs control procedure;
- the presumption applicable to item III may be rebutted only where the tax authorities demonstrate, through detailed reasoning based on the elements established in the specific case, that the information at issue was directly and immediately intended for the assessment or collection of taxes, in which case the violation must be expressly classified as tax in nature. An indirect, ancillary, or incidental contribution of the information to tax enforcement is not sufficient to rebut the presumption.
How Are Past Assessments and Payments Affected?
The table below summarizes the treatment defined by Cosit for each situation:
| Situation | Tax violation (items I and II; item III where expressly classified as tax in nature) | Administrative violation (item III, general rule) |
|---|---|---|
| Ongoing audit, no assessment issued | The authorities must refrain from assessing the penalty, regardless of the date of the conduct | The penalty must be assessed, under the law in force at the time of the violation |
| Assessment issued and paid | Payment treated as final by the RFB; according to the Internal Ruling, no administrative refund is available | Payment treated as final by the RFB; according to the Internal Ruling, no administrative refund is available |
| Assessment under administrative or judicial challenge, not yet final | Must be cancelled, according to the Internal Ruling (Article 106, II, “a”, of the CTN) | Assessment remains outstanding; it is not cancelled solely as a result of the repeal |
| Conduct occurring on or after January 14, 2026 | Penalty not applicable | Penalty not applicable |
With respect to tax violations, Cosit relied on settled case law of the Federal Administrative Tax Court (CARF) on the application, including ex officio, of the more lenient rule. With respect to amounts already paid, the Internal Ruling invoked the STJ’s position that payment extinguishes the tax liability, with the result that the matter can no longer be regarded as “not definitively decided” for purposes of Article 106 of the CTN (Special Appeal No. 852,647/RS, Second Panel, decided on August 24, 2010). For administrative violations, the Internal Ruling relied on recent case law of the STJ under which the retroactive application of more lenient rules in the field of administrative sanctions requires express statutory authorization (Agravo Interno no Recurso Especial No. 2,204,700/ES — AgInt no REsp 2,204,700/ES, Second Panel, decided on March 12, 2026), the principle of tempus regit actum applying instead.
What Should Companies Do Now?
Because it is an internal consultation ruling, the guidance binds all units of the RFB, which provides immediate predictability to the treatment of pending cases. Importers and beneficiaries of special customs regimes are advised to:
- review all assessment notices and pending administrative or judicial proceedings involving the Article 711 penalty, identifying the item applied in each charge;
- in the situations covered by items I and II, request the cancellation of assessments not yet definitively resolved and monitor the required abstention from new assessments in ongoing audits;
- in the situations covered by item III, examine the grounds stated in the assessment: if the omitted or inaccurate information was directly and immediately intended for the assessment or collection of the taxes imposed on the transaction (which may occur, in theory, with certain elements directly related to customs valuation), there is room to argue that the violation is tax in nature and, on that basis, to seek the cancellation of the charge;
- weigh, before paying any outstanding amounts assessed under item III, the effects of the finality rule, since the RFB will treat amounts paid as final and will not allow their administrative refund.
Cosit’s position favors taxpayers with respect to items I and II, by recognizing that those violations are tax in nature and applying the more lenient legislation in full. The sensitive point lies in the presumption of administrative nature established for item III violations: rebutting it will require, in each case, a detailed demonstration that the information at issue was directly and immediately intended for the assessment or collection of taxes.
There is also a less evident effect, possibly the most relevant one for older item III disputes: the Internal Ruling shifts the focus of the discussion. Until now, the defense in those cases typically turned on the objective elements of the violation, that is, whether the error existed, whether the information provided was complete, and whether the conduct fit the statutory description. A preliminary question now arises: what specific regulatory or tax function was the information requirement intended to serve? Because Cosit itself conditions the classification on the elements established in each case, information such as the description of the goods, their value, origin, the parties involved, and their destination may lead to different conclusions as to whether the underlying violation is tax or administrative in nature. In pending proceedings, this individualized examination is likely to become the first step in the analysis of each charge.
We will continue to monitor the forthcoming regulations under Article 341-G, XIX, of Complementary Law No. 214/2025, which are expected to define how the new penalty will apply to customs declarations, and we remain available to discuss the practical implications of this ruling for each company’s foreign trade operations.
MILANEZ VILLELA ADVOGADOS