G/VAL/Q/BRA/2  
 
15 November  2023 
(23-7710) Page: 1/7 
Committee on Customs Valuation  Original: English  
 
  
NOTIFICATIONS UNDER ARTICLE 22 OF AGREEMENT  ON IMPLEMENTATION  
OF ARTICLE VII OF THE GENERAL AGREEMENT  
ON TARIFFS AND TRADE  1994  
REPLIES FROM BRAZIL TO QUESTIONS  FROM THE UNITED STATES  
CONTAINED IN DOCUMENT G/VAL/Q/BRA/1  
BRAZIL 
The following communication, dated 13 November  2023, is being circulated at the request of the 
delegation of Brazil . 
 
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Question 1  
 
In Article 2(VII), "value ratified " is defined as "the customs value of a particular good, regularly 
calculated by a Fiscal Auditor of the Federal Revenue of Brazil, or expressly accepted by it … ". The 
concept of "ratified value " is referred to in the provisions on test values and transaction value of 
identical or similar goods.  
 
• Please explain what it means to "expressly accept " the value for these purposes.  
 
• Does this mean that in order to be used for purposes of test values, transaction value of 
identical goods, or transaction value of similar goods, the previously accepted customs value 
must have actually been validated by the customs  authority , rather than merely accepted by 
it? 
 
Response  
 
The expression "expressly accept" means that the customs authority must validate the customs 
value of a particular good for the purposes of applying the provisions on test values and transaction 
value of identical or simil ar goods.  
 
Question 2  
 
Regarding Article 4(IV), Section 1, please clarify whether a relationship between the buyer and the 
seller is prima facie  evidence that the relationship influenced the price.  
 
Response  
 
This provision is related to Article 1.1(d) of the CVA. In this sense, the relationship between the 
buyer and the seller is not prima facie evidence that the relationship influenced the price.  
 
Question 3  
 
Article 4(IV), Section 3 provides that the transaction value in a related -party transaction may be 
accepted if it is "very close " to certain test values occurring at or about the same time. Could Brazil 
please confirm that "very close " is equivalent to the  "closely approximates " standard as provided in 
Article 1.2(b) of the WTO Customs Valuation Agreement (CVA)?  G/VAL/Q/BRA/2  
 
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  Response  
 
Yes, both expressions are equivalent.  
 
Question 4  
 
Has Article 9 of the CVA been implemented in Brazil? If so, please identify the relevant provisions  of 
Brazilian law , specify where the rate of exchange is published , and specify  whether the rate is applied 
as of the date of exportation or importation.  
 
Response  
 
Yes, Brazil has implemented Article 9 of the CVA.  
 
In accordance with Article 73 (I) and 97 of Decree No. 6759/2009, values expressed in foreign 
currency must be converted into national currency at the exchange rate on the date of the 
registration of the import declaration.  
 
The system in which the import dec laration is registered converts the foreign currency into the 
national currency (reais). The daily currency exchange rate is published on this link from the Central 
Bank:  https:/ /www.bcb.gov.br/estabilidadefinanceira/historicocotacoes . 
 
Question 5  
 
Article 5, Section 1(I) provides that the price actually paid or payable includes "commercialization 
of the imported goods, such as advertising, warranty and sales promotion, paid by the buyer to the 
seller or for the benefit of the seller so as to satisfy  a part of the payment for the imported goods, 
and as a condition of sale of that good … ". 
 
Please explain how this provision is consistent with the CVA, in particular, paragraph 2 of the 
Interpretative Note to Article 1, paragraph 1(b) section 2 ( " … Likewise, if the buyer undertakes on 
the buyer 's own account, even though by agreement with the seller, activities relating to the 
marketing of the imported goods, the value of these activities is not part of the customs value nor 
shall such activities result  in rejection of the transaction value. "). 
 
Response  
 
Article 5, Section 1(I) of the Normative Instruction RFB 2090/2022 deals with a specific situation in 
which the buyer pays the seller, or for the seller's benefit, for the activities of commercialization of 
the imported goods serving as partial fulfillment of the payment for the imported goods, and as a 
condition of sale of that good.  
 
This is in accordance with paragraph 1 of the Interpretative Note to Article 1, which provides that 
"the price actually paid or payable is the total payment made or to be made by the buyer to or for 
the benefit of the seller for the imported goods ", and paragraph 7 of Annex III, which states that 
"the price actually paid or payable includes all payments actu ally made or to be made as a condition 
of sale of the imported goods, by the buyer to the seller, or by the buyer to a third party to satisfy 
an obligation of the seller ". 
 
On the other hand, paragraph 2 of the Interpretative Note to Article 1 deals with a  distinct situation 
in which the buyer undertakes on their own account, even though by agreement with the seller, 
activities relating to the marketing of the imported goods. That is, in the situation where the buyer 
optionally pays for marketing activities  of the imported goods, the value of these activities is not 
part of the customs value, nor shall such activities result in the rejection of the transaction value.  
 
Therefore, Article 5, Section 1(I) of the Normative Instruction is fully consistent with pa ragraph 2 of 
the Interpretative Note to Article 1 of the CVA, considering that these provisions deal with different 
situations where the buyer pays for the commercialization activities of the imported goods.  
 G/VAL/Q/BRA/2  
 
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  Question 6  
 
Article 5, Section 1(II) provides that the price actually paid or payable includes "the supply of 
materials or provisions or services to a third party, by the buyer, for the benefit of the seller, as a 
condition of sale of the imported good ". 
 
Could Brazil please confirm whether this provision is intended to address "indirect payments " as 
provided for in paragraph 1 of the Interpretative Note to Article 1 ( " … Payment may be made directly 
or indirectly. An example of an indirect payment would be  the settlement by the buyer, whether in 
whole or in part, of a debt owed by the seller. "). 
 
Response  
 
Yes, this provision is intended to address "indirect payments" as provided for in paragraph 1 of the 
Interpretative Note to Article 1. This is also in ac cordance with paragraph 7 of Annex III (The price 
actually paid or payable includes all payments actually made or to be made as a condition of sale of 
the imported goods, by the buyer to the seller, or by the buyer to a third party to satisfy an obligation  
of the seller).  
 
Question 7  
 
Article 5, Section 2 provides that "[f]or purposes of calculation of the customs value based on the 
transaction value method, the discount related to previous transactions shall be considered as part 
of the price actually paid for the valued goods to which this discount has been granted, regardless 
if the discount is distinguished in the commercial invoice ". 
 
• Could Brazil please explain whether this provision prevents legitimate quantity discounts from 
being consid ered in determining the customs value of goods?  
 
Response  
 
Brazil understands that the discount for previous transactions represents an amount that has already 
been paid to the seller (or a prior credit in favor of the buyer). As such, it is included in th e price 
actually paid or payable as a direct payment. Therefore, it must be included in the Customs value.  
 
Article 5, Section 2 refers to a retroactive discount given for goods imported before the importation 
to which the discount applies, corresponding t o transactions other than that relating to the goods to 
be valued. This provision is related to the Advisory Opinion 8.1 of the TCCV, which provides that 
"The amount of the credit represents an amount already paid to the seller and accordingly is covered 
by the Interpretative Note to Article 1 on price actually paid or payable, which specifies that the 
price actually paid or payable is the total payment for the imported goods made, or to be made, to 
the seller. Thus, the credit is part of the price paid and  for valuation purposes must be included in 
the transaction value. " 
 
Article 5, Section 2 does not prevent legitimate quantity discounts from being considered in 
determining the customs value of goods. In this case, Brazil analyzes the quantity discounts i n 
accordance with Advisory Opinion 15.1.  
 
Question 8  
 
Please clarify the meaning and intended application of Article 9, Section 1(II), which provides that 
"[t]he elements referred to in the head of this article shall be included in the customs value based 
on the costs actually incurred, including in cases of … goods that enter the country via their own 
ways". 
 
Response  
 
Article 9 is related to Article 8.2 of the CVA.  
 
Article 9 Section 1(II) addresses the situation where the imported goods are the means of transport 
itself. To illustrate, we could mention the importation of an airplane. In this case, the cost of G/VAL/Q/BRA/2  
 
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  transport of the imported good (the airplane) to  the place of importation and the insurance must be 
included in the customs value of the imported goods.  
 
Question 9  
 
Article 12 provides for situations in which the customs authority may decide whether to apply the 
transaction value method. Could Brazil please identify the provisions implementing Article 1.1 of the 
CVA (e.g., restrictions on disposition or use of the goods, condition or consideration for which a 
value cannot be determined, etc.)?  
 
Response  
 
Article 12, IV, provides for any situatio n in which the customs authority may decide whether to apply 
the transaction value method based on the provision of CVA.  
 
Please, note that the provision of Article 1.1 of the CVA are explicitly outlined in the Article 4 of the 
Normative Instruction RFB 20 90/2022.  
 
Question 10  
 
Regarding Article 12, does Brazil inform the importer of its doubts (in writing if requested), give the 
importer an opportunity to respond, and inform the importer in writing of the final decision?  
 
Response  
 
Yes, Brazil follows the provisions set out in Decision 6.1 of the WTO's Committee on Customs 
Valuation (which is included in the Annex of Normative Instruction RFB 2090/2022).  
 
Furthermore, it is important to mention that the regulation of fiscal administrative proces ses is laid 
out in Decree 70.235/1992. Article 7, I, of this Decree provides that the process begins with the first 
act of the authority, in writing, which notifies the taxpayer.  
 
Thus, in this act, the administrative authority must inform the importer of any doubts regarding the 
declared customs value, granting a reasonable period for a response (usually 20 days). After 
analyzing the information and documents presented by the importer, the customs authority must 
communicate its final decision.  
 
The sole pa ragraph of Article 12 of Normative Instruction RFB 2090/2022 establishes that, in the 
event of a decision on the impossibility of applying the transaction value method, the customs 
authority must inform the importer about the reasons that motivated the dec ision.  
 
Question 1 1 
 
Article 16(I) on the deductive value method provides that "resale at a unit price higher than the 
estimated value, the payment of the difference in taxes shall be required, with the respective fines 
and interests ". 
 
Could Brazil please clarify what fines and interest would apply in such cases (e.g., when the reseller 
in Brazil is able to sell the goods at a price that is higher than expected and subsequently adjusts 
the customs value upward)?  
 
Response  
 
In this case, "fines and in terest" arise from debts that were not paid within the period stipulated by 
legislation (that is, on the date of the import declaration registration). Thus, the importer must pay 
a late payment fine and interest, in accordance with Article 61 of Law No. 94 30/1996.  
 
Considering that this is a spontaneous payment, an ex officio fine (which is a penalty applied in 
cases where the customs authority issues an infraction notice) is not required.  
 G/VAL/Q/BRA/2  
 
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  Question 12  
 
Section II generally provides for the alternate valuation methods. Could Brazil please explain 
whether all the technical requirements for Articles 2, 3, 5, 6, and 7 of the CVA have been 
implemented domestically? For example, are the prohibited bases of valuation in Article 7 of the 
Customs Val uation (selling price in the country of importation, system which provides for the 
acceptance for customs purposes of the higher of two alternate values, etc.) incorporated in Brazil 's 
law? 
 
Response  
 
Brazil incorporated the CVA into the national legislation through Decree No. 1355/1994, giving the 
said Agreement the status of law. Therefore, all provisions of the CVA, including the technical 
requirements for Articles 2, 3, 5, 6, and 7 of the CVA, must be observed by the customs authorities 
and the  private sector.  
 
Normative Instruction No. 2090/2022 contains detailed information on the transaction value, 
considering that this is the most frequently used method (in more than 90% of imports).  
 
Question 13  
 
Please confirm whether  Brazil has adopted al l definitions set forth in Article 15 of the CVA.  
 
Response  
 
Yes, Brazil has adopted all definitions set forth in Article 15 of the CVA.  
 
Question 14  
 
Could Brazil please provide information on the publication of laws, regulations, judicial decisions, 
and administrative rulings of general application, as required under Article 12 of the CVA?  
 
Response  
 
Please, find bellow some examples of publication:  
 
Laws and regulations:  
 
Normative Instruction nº 2090/2022:  
http://normas.receita.fazenda.gov.br/sijut2consulta/link.action?idAto=124633#2348002  
 
Decree nº 1355/1944  : 
https://www.planalto.gov.br/ccivil_03/decreto/Antigos/D1355.htm  
 
Decision CMC nº 13/2004 (Decree nº 6870/2009):  
https://www.planalto.gov.br/ccivil_03/_ato2007 -2010/2009/decreto/d6870.htm  
 
Administrative decisions:  
 
https://carf.fazenda.gov.br/sincon/public/pages/ConsultarJurisprudencia/consultarJurisprudenciaC
arf.jsf  
 
Judicial decisions  (supreme  courts):  
 
https://portal.stf.jus.br/textos/verTexto.asp?servico=estatistica&pagina=decisoesinicio  
 
https://processo.stj.jus.br/SCON  
 
Administrative rulings:  
 
https://atosdecisorios.receita.fazenda.gov.br/consultaweb/index.jsf  
 G/VAL/Q/BRA/2  
 
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  Question 15  
 
Please identify the provision implementing Article 16, which provides the importer with the right to 
an explanation in writing as to how the customs value was determined.  
 
Response  
 
As informed in Question 12, Brazil incorporated the CVA into its national legislation through Decree 
No. 1355/1994, with the status of law. Thus, all its provisions must be fully complied with, including 
Article 16.  
 
When the customs value is determined by the customs authority, a written infraction notice is issued, 
in accordance with Article 10 of Decree No. 70.235/1972. In this infraction notice, the customs 
authority must describe the specific facts and explain how the customs value was determined.  
 
Question  16 
 
Article 19, Section 1, provides that "[t]he estimated values shall be rectified by the importer, within 
90 (ninety) days, unless the importer proves that the implementation of the factors referred to in 
the head of this article will take place in a lo nger period than that declared at the time of import 
declaration ". 
 
• Could Brazil please clarify whether there is any limitation on the extension of the 90 -day 
timeframe?  
 
Response  
 
As a general rule, the importer has up to 90 days to rectify the value that was estimated in the 
import declaration. However, this period can be extended if the importer demonstrates that the price 
to be paid for the imported goods or the information necessary to use the transaction value method 
depends on factors to be imple mented over a period longer than 90 days after importation.  
 
Question 17  
 
Article 28 provides that "[t]he doubts of the customs authority may be based on, besides other 
elements, the incompatibility of the declared price with  … ". 
 
• Could Brazil please confirm that the list of elements in Article 28 I -VI are elements of the 
customs  authority 's risk assessment and justifications for seeking further information from 
the importer, rather than reasons to reject the declared price?  
 
Respon se 
 
Yes, Article 28 I -VI are merely examples of elements of risk assessment and justifications for seeking 
further information from the importer.  
 
Question 18  
 
Article 29 states that "[i]n the calculation of the customs value, the following international acts shall 
also be observed " and includes a list of the instruments issued by the WCO Technical Committee on 
Customs Valuation.  
 
• Could Brazil please explain whether these instruments constitute binding legal precedent  in 
Brazil ? 
 
Response  
 
These instruments were incorporated into national legislation through a Normative Instruction from 
the Special Secretariat of the Federal Revenue of Brazil (RFB). Thus, these instruments constitute 
binding legal precedent for the customs authorities (inclu ding those responsible for determining 
customs value through control, as outlined in Article 17 of the CVA, as well as the customs authorities 
responsible for administrative appeals at the first instance).  G/VAL/Q/BRA/2  
 
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  These instruments do not serve as binding legal pr ecedents for the Administrative Council of Tax 
Appeals (CARF), which is the second administrative instance, nor for the Judiciary. Nevertheless, 
they frequently use the TCCV instruments as a basis for their decisions.  
 
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