The classification of penalties for fraudulent third-party interposition and name lending has become a key issue in customs litigation. It directly affects whether intercurrent limitation applies and how high the penalties may be, with exposure reaching 100% of the customs value.
In 2025, ruling on Repetitive Appeal Theme 1,293, the Superior Court of Justice (STJ) held that intercurrent limitation applies to administrative proceedings involving non-tax customs penalties that remain inactive for more than three years.
The Court also distinguished administrative from tax-related penalties: a penalty is administrative when the underlying rule primarily concerns control over the international movement of goods or the proper functioning of the customs service, and tax-related when the obligation is directly and immediately linked to the collection or enforcement of the taxes levied on the transaction.
Despite this test, Brazil’s Administrative Council for Tax Appeals (CARF) has begun to classify these penalties as tax-related by the casting vote (the chair’s tie-breaking vote), reasoning that concealing the actual purchaser undermines the identification of the party liable for the tax and may affect customs value, special customs regimes and the assessment of import taxes. This prevents the intercurrent limitation under Article 1, paragraph 1, of Law No. 9,873/1999 from applying, but opens up another significant avenue for taxpayers.
Having characterized these penalties as tax-related, CARF must then apply General Repercussion Theme 487 of the Federal Supreme Court (STF), which capped standalone penalties for breaches of ancillary obligations at 20% of the transaction value where no related tax is due, rising to 30% in aggravated cases. Because penalties for fraudulent interposition replace the forfeiture of the goods and are calculated at 100% of the customs value, this precedent may cut that figure substantially.
CARF has already applied Theme 487 in practice. In May 2026, in Case No. 15165.720691/2015-41, it cut the penalty from 100% to 30% of the customs value while upholding the demand itself, having found fraud to be an aggravating circumstance.
This creates a paradox: the same characterization that preserves the penalty by keeping intercurrent limitation out of play also caps its amount. Companies facing infraction notices of this kind should therefore work on both fronts together. Even where the proceeding has not stalled long enough to time-bar the claim, there may be solid grounds to cut the penalty from 100% to 20% or 30% – with direct effect on the recorded liability and on defense strategy.
Glossary
fraudulent third-party interposition: A customs violation involving the concealment of the party actually responsible for or interested in an import or export transaction through the use of an intermediary.
name lending: The practice of allowing one’s name or corporate identity to be used to conceal the actual party behind a transaction.
intercurrent limitation: A limitation period that may run while an administrative proceeding is pending, typically as a result of prolonged inactivity by the authorities.
customs value: The value determined under customs rules for purposes such as assessing import duties and certain customs penalties.
Repetitive Appeal Theme: A Brazilian Superior Court of Justice mechanism used to establish precedent on a legal issue recurring in numerous cases.
Superior Court of Justice (STJ): Brazil’s highest court for matters involving federal law that do not primarily concern constitutional interpretation.
Administrative Council for Tax Appeals (CARF): Brazil’s federal administrative body responsible for adjudicating disputes involving federal taxes and certain customs matters.
casting vote: A tie-breaking vote traditionally exercised by the chair of a collegiate decision-making body when the other members are evenly divided.
General Repercussion Theme: A Brazilian Federal Supreme Court mechanism through which the Court decides constitutional issues considered relevant beyond the individual case and establishes precedent for similar disputes.
Federal Supreme Court (STF): Brazil’s highest court and the final authority on constitutional matters.
ancillary obligations: Under Brazilian tax law, non-payment obligations imposed on taxpayers or other parties, such as reporting, filing, recordkeeping or disclosure requirements.
forfeiture: A customs sanction involving the loss of goods to the government as a consequence of specified violations.
infraction notice: A formal administrative document through which Brazilian authorities record an alleged violation and assess the corresponding tax, penalty or other liability.
