Importing into Brazil is complex and subject to very specific rules that cannot be found anywhere in the world.
It is therefore important to understand the main concepts before starting.
In this article, we take the point of view of a Brazilian importing company and not of a foreign exporter.
In any case, it is impossible for a foreign exporter to take care of customs clearance, under any import modalities whatsoever, due to their inability to obtain the necessary RADAR import permit as we will see later.
Thus, as mentioned, importing is a complex process for any Brazilian company due to its bureaucracy and the logistical costs generated during customs stops due to a procedural error, which can last weeks or even months before seeing the situation resolved.
Faced with this risk, many Brazilian companies choose to outsource the management of their import operations.
However, in Brazil it is not possible to simply ask a specialized Importer of Record to import and resell the goods to yourself.
This is prohibited and considered a crime called fraudulent interposition, “Interposição fraudulenta” in Portuguese, which we will see in detail later.
Thus, in order to respond to this demand for subcontracting, two unique import modalities in Brazil were born: “Importação por conta e ordem de terceiros” and “Por encomenda”; deal with a specific type of company: the trading company, of which we will see the advantages and levels of responsibilities for each method.
Import modalities overview
There are 03 types of imports in Brazil, which are:
- Own or direct import called “Importação própria ou direta”
- Import on account and order of third parties called “Importação por conta e ordem de terceiros”
- Import by order called “Importação por encomenda”
And before going into detail on each, we must clarify the basis of any import to Brazil: the essential RADAR import permit.
What is the RADAR, based on each import modalities
The first concept to assimilate is the importation into Brazil is only possible by a company certified with an import permit called RADAR.
There are three threshold of RADAR allowing different import value limits:
- RADAR Express or Radar 50, which authorizes the import of up to USD 50,000 of CIF value over a rolling 6-month period.
- RADAR Limited or Radar 150, which allows importing up to USD 150,000 of CIF value over a rolling 6-month period.
- Unlimited RADAR which imposes no import limit.
RADAR is therefore necessary for each modality whether for direct import or import via a third party in “Conta e Ordem” or “Por Encomenda”.
It is also worth noting that if you are a foreign company, it will be impossible for you to obtain a RADAR (only open to companies located in Brazil with corporate number CNPJ) and that you will therefore not be able to clear the goods in Brazil. Only your customer or a local partner certified with a RADAR.
Now that we have clarified the issue of RADAR, see why – as mentioned in the introduction – a Brazilian company cannot simply ask a specialized Importer of Record to import the coveted products and resell to it, taking the risk of being judged criminally: the concept of fraudulent interposition.
What is the notion of fraudulent interposition, based of “Importação por conta e ordem de terceiros” and “Por encomenda”
The concept of fraudulent interposition, called “Interposição fraudulenta” is crucial to understand the logic of import mechanisms in Brazil but also the way customs officers will analyze the operations.
Fraudulent interposition is one of the main illegal import practices in Brazil and stems from a simple fact:
The Brazilian government wants to know for each import who is the person really interested in that import operation.
And fraudulent interposition occurs when an entity is in the position of an import intermediary, with the purpose of hiding another agent, thus causing damage that makes the Brazilian Federal Revenue’s administrative control difficult.
To put it simply, let’s imagine I am a Brazilian company that wants to import goods, but I don’t have the skills to do so.
It is not possible for me to simply ask an Importer of Record to import the goods and resell them to me, without my appearing during the customs process. Because I am the one really interested in this import.
On the other hand, from a practical or moral point of view, there is no problem in importing to other companies. It is common for an entrepreneur to dedicate himself to local businesses in the sale and distribution of goods in Brazil, leaving international business to companies dedicated to this activity.
Therefore, two import modalities have been created to allow such indirect import:
- Import on account and order of third parties called “Importação por conta e ordem de terceiros”
- Import by order called “Importação por encomenda”
In these two cases, the real person interested in the import can specify to the Brazilian customs who is the ordering party but that the import operation will be carried out by a third party, generally a Trading company.
Trading company, import specialists in Brazil
Trading company therefore has a very particular meaning in Brazil related to imports, different from the connotation of financial trading to which we are more accustomed worldwide.
Trading are companies that specialize in taking care of bureaucratic import procedures. They plan each import step, from document issuance by the exporter to customs clearance in Brazil and can even take care of logistical storage and final distribution.
In addition to the many advantages of intermediation, trading companies can also offer tax benefits granted to them by certain states such as Santa Catarina and Espírito Santo.
Now that we have understood the legislative landscape and the players involved in importing into Brazil, let’s take a closer look at the different methods of importing a Brazilian company (with RADAR).
Brazilian import modalities in details
1. Own or direct import called “Importação própria ou direta”
In “Importação propria” imports, the importer is the consumer and is the one who performs all stages of the import process, from negotiation with the exporter, international logistics and clearance, using its own resources. In this operation, the importer is the consumer / distributor of the items, there is no intermediary such trading company.
2. Import on account and order of third parties called “Importação por conta e ordem de terceiros”
In this modality, imports are carried out by a third-party company (trading company), which is hired to carry out all the import steps and deliver the already nationalized products to the final customer, optimizing activities and leaving the company focused on its main activities.
In this operation, the negotiation and purchase with the exporter is carried out with funds from the contracting party.
The main characteristic of the “Importação por conta e ordem de terceiros”, in comparison to “por encomenda, is that the trading acts here only as a service provider, and will invoice it via a separate service note in parallel with the transactions concerning the products.
The transfer of the goods from the trading to the contractor is made through a Nota Fiscal (legal document in Brazil for each transaction) “de transferência”, for transfer, highlighting IPI and ICMS taxes.
It is important to comply with the restrictions and determinations provided for in the legislation on “customs value” and “transfer price”.
As a service provider, the trading does not have to provide the funds necessary for the operation, which is the responsibility of the contractor.
Finally, both the trading company and the contractor must have a RADAR license with proper threshold.
Import by order called “Importação por encomenda”
Unlike “Importação por conta e ordem de terceiros”, in “Importação por encomenda” the contracted legal entity (trading company) is the one who will bear the costs of the operation and promote the sale of the nationalized merchandise to a specific person (the orderer called “encomendante).
In this modality, the import is carried out by a trading company, which is responsible for carrying out all the steps of the import, from negotiation and purchase with the exporter to customs clearance, with its own resources, and subsequent sale to the consumer who ordered the products.
In this operation, the negotiation and purchase with the exporter is carried out with funds from the trading company.
The remuneration of the trading is made directly through the invoice for the sale of the imported product to the orderer, based on previously agreed amounts.
It is important to comply with “transfer pricing” legislation.
Even, if the import is fund by the trading company, it is important to note that also in this case both the trading company and the contractor must have a RADAR license with sufficient limit threshold.
A detail regarding the funding, even if the financial resources of the import operation are original from the trading company, part of the resources may be advanced according to IB 1937/2020:
” The amounts received from the predetermined ordering party as payment, in whole or in part, of the obligation are considered to be the importer’s own resources, even if it occurred before the import operation or the commercial transaction of purchase and sale. “
Therefore, anticipation is allowed for the purchase and sale obligation, and not for import costs.
Conclusion:
Although this article was written from the point of view of a Brazilian importer because of the mandatory prerequisites for customs clearance in Brazil, we wanted to raise awareness mainly of foreign companies interested in this market and who must therefore know its internal mechanisms.
As you have seen, importing to Brazil is not easy and can put off more than one of your customers who prefer more local sourcing.
There are different solutions to this, whether it is establishing a local stock in a tax-free zone (bonded warehouse) which will already remove several risks for your customers and allow them flexibility and speed of supply, or finding a partner Importer of Record able to work in total synergy with you.
To learn more, do not hesitate to contact us.
