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will the IRS release notebooks as personal effects on international trips?

MacBook Pro com a bandeira do Brasil

Everyone who has traveled abroad knows that there is a quota of $ 500 for purchases abroad and that, with the exception of a few products (a smartphone, a watch, a camera, for example), everything you bring – including outside the box – should be declared and taxed (50% over the exceeding the US $ 500 quota).

Last February, Brazilians in general were in an uproar when faced with the news that the courts had prevented the IRS from retaining the notebook of a traveler returning from abroad without an invoice. At the time, the 7th Panel of the Federal Regional Court of the 1st Region understood that the item was part of the passenger’s luggage, without presenting a commercial purpose, and determined that the inspectors release the computer.

By law, all merchandise that enters the country without an import guide or document having equivalent effect is characterized as «damage to the treasury and implies a penalty of loss». However, federal judge Clodomir Sebastião Reis says that, according to article 155 of Decree 6,759 / 2009, baggage is considered “the new or used goods that a traveler, in accordance with the circumstances of his trip, can dispose of for his use or personal consumption, as well as to give as gifts, whenever, due to their quantity, nature or variety, it is not possible to presume importation for commercial or industrial purposes ”.

This week he painted another case. Judge Helena Elias Pinto, from the 3rd Federal Court of Rio, ordered the IRS to release a notebook seized at Rio International Airport after its owner passed through customs without declaring good. The model, a MacBook (valued at $ 1,800), exceeded the exemption quota for international travel. However, in the preliminary injunction, the owner stated that the computer was a work instrument for personal and exclusive use – «reason why he should not pay tribute for its release».

According to the judge, “there is a consolidated understanding in the National Courts that the retention of goods cannot be used as a coercive means for the payment of taxes”. She stated that the property should be returned without paying tax or offering a guarantee.

Opening precedents

Do the above cases set a precedent for a change in this scenario?

We talked to the reader MacMagazine and lawyer Gustavo Jaccottet Freitas about the subject. For him, it is clear that there is already a precedent, formed by the decision of the 7th Panel of TRF1. Thus, it is likely that federal judges of 1st instance (whose highest court is TRF1) will adopt the understanding that the item for personal use should be interpreted according to the nature of the trip. We were then dependent on the Federal Revenue Service; a simple regulatory act is enough to include notebooks as items for personal use.

Nothing to declare

It seems like a simple thing, that could happen at any moment and that would solve this mess once and for all, doesn’t it? Calm down that it’s not like that.

According to Gustavo, even with the scenario «painted» above, not necessarily any and all notebooks would be released. The Revenue could, for example, restrict notebooks by model (only X, Y or Z notebooks) or price (only products that cost $ 1,500 or less, who knows).

Another important point in this equation would be the purpose of the trip itself. Continuing with examples, to facilitate understanding, anyone going to the United States on business or working with image / video editing may need to purchase new hardware while traveling; now, anyone who goes to Disney with his family and returns with a MacBook (bought on the trip) in his backpack and another sealed – and does not declare them – is at risk of suffering administrative and criminal penalties (which, in this case, would be the crime routing).

Everything varies according to the common sense and the personal circumstances of the traveler, cases in which even the nature of the visa used to enter the USA is relevant to assess whether the acquisition was made out of necessity or to escape the high prices practiced here in Brazil .

It is worth remembering that the IRS has used the five-year tax credit prescription rule to decide whether a product is subject to seizure or not. If the product has been on the market for more than five years, it is not learned; if you are five or younger, there is a risk.

So, let’s hope that something changes in this scenario and that notebooks – and tablets, it is good to remember – enter, in some way, within the items considered “personal use or consumption goods”. Let them take advantage and increase that $ 500 quota, which has remained unchanged for a long time.