The concealment of the real purchaser in the import operation, by means of fraud or simulation, is subject to several penalties set forth in the Brazilian legislation.
Article 689, item XXII, of the Customs Regulation (Decree 6759/2009) considers that the "concealment of the taxable person, real seller, purchaser or responsible for the operation, by means of fraud or simulation, including the fraudulent interposition of third parties" causes injury to the treasury, punishable with the penalty of forfeiture of the good. The penalties are severe, and vary from forfeiture of the imported goods to measures within the criminal scope.
Generally, the concealment of the real purchaser consists in the lack of submission of correct information to the Customs Authority (Receita Federal do Brasil) about the receiver of the goods. Therefore, there is fraud when there is the concealment per se, regardless of the result intended with the practice of the concealment.
For the Customs Authority, in import operations with the use of third parties (indirect operations, thus), the concealment of the real purchaser consists in simulation with the purpose of omitting the operation effectively performed. The simulation of import on one's own, when it occurs in the practice of an importation on behalf of third parties or under order, with concealment of the records of the Customs Authority of the real purchaser of the goods, constitutes infringement.
In fact, the concealment of the real purchaser is often used to avoid tax obligations, principal and accessory, but not necessarily.
Companies may be surprised by assessment notices that identify the existence of irregular importations with concealment of the real purchaser, given that the irregularity consists in the non compliance of the legal requirements of the use of third parties, regardless of payment of taxes.
The correct identification of sensitive operations that may be considered by the Customs Authority as irregular indirect importations with concealment of the real purchaser is essential to the companies that operate in international trade.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.