In June 20th, 2002, U.S. and Brazil signed a CMAA aiming the implementation of a formal system that will become possible the enhancement of the exchange of information, intelligence, and documents, which will assist both countries in the prevention and investigation of customs offenses.
After the approval from the Brazilian National Congress, and by considering the need of an executive rule to become the CMAA provisions legally effective for the Brazilian Customs, the federal government enacted the Decree # 5.410 in April 6th, 2005.
In connection to the CMAA, the said decree intents to intensify and to complement the mutual assistance actually in force between the parties, by the increase and improvement of the information exchange, allowing the countries to fiscalize the imported and exported products, and also the citizens traffic, with maximum security, what is extremely necessary by considering the growth in the volume and complexity of international trade.
By according to the CMAA and decree dispositions, the internal organizations that will be responsible for the information exchange are the Brazilian IRS (Secretaria da Receita Federal) and the U.S. Customs & Border Protection, this last actually subordinate to the U.S. Department of Homeland Security, instead of the U.S. Department of the Treasury as stated in the CMAA and in the decree.
Each organization is in charge to conduct all the investigations proceedings under its respective jurisdiction with the information exchanged, but it will be able to help the other party to solve some suspicions cases if requested so, as long as some requirements were accomplished. (please see the 6th and 7th paragraph)
The above mentioned information exchange can be defined, basically, as an investigative tool based on a formal request presented by one and/or both countries, soliciting additional explanations, intelligence and documents related to the import and export proceedings, as well related to the citizens who intend to cross their border. In other words, the organizations will have access to each other files and data in order to avoid offenses to respective customs statutes and, as a consequence, to avoid prejudicial activities and products that will reflect negatively to their interesting mainly focused in the economic, security, commercial and fiscal areas.
The CMAA also states that mutual assistance reaches the Judicial Branch from both countries, also allowing the participation of appraisers and witnesses in the investigation procedures that will take place in the adverse country.
It is important to emphasize that the costs deriving from the appraisals, testimonies and translators, not connected with the government, will be supported by the country that have requested them, and in case of large amount expenses, there will be necessity to request the previous authorization from organizations that have request the special procedures of information exchange.
Besides that, even considering this mutual assistance agreement, the organizations will have to comply with the respective internal legal framework before sending its documents and data. In other words, the information exchange can face some barriers based on specific internal provisions, what can also reflect negatively to certain interests from both sides, and as a consequence negatively to the CMAA itself.
Due to the recent Brazilian decree enactment, and by considering that the U.S. government has not enact its respective act in order to become legally effective the CMAA for its customs, we will have to wait to find out if the CMAA will work as idealized by both countries or not.
Despite of that, there is one sure about the CMAA: it can and will be used as an important tool to investigate the large number of transfer pricing issues between the countries.
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