The "Samba de uma nota só" and Brazilian Customs Law

🟦1. “Samba of one note only”

Newton Ferreira de Mendonça was a great Brazilian composer, pianist, violinist and harmonica player. Born in Rio de Janeiro in 1927, he was friends with Tom Jobim from the age of 15, not only because of musical affinities, but also because they shared the neighborhood of Ipanema and played sports such as beach volleyball (very common in the 1940s and 1950s). From the 1950s, Newton and Tom began working together on compositions and took turns in professional roles, such as being the pianist at the "Posto Cinco" nightclub. [1]

Among the dozens of songs that emerged from the collaboration between Tom and Newton, the works “Desafinado” and “Desafinado” deserve an undeniable mention., great success of the bossa nova Recorded by João Gilberto in 1959, on the pioneering album "Chega de Saudade”[2], and “Samba de umanota só"[3], first track of the album titled “O Love, or Smile and Flower”, recorded a year later by João Gilberto. Still in 1960, Newton Ferreira de Mendonça died prematurely, aged 33, from a heart attack.

Our article today highlights some of what it represented "Samba de uma nota só” (which, contrary to what its name suggests, is not composed of a single note, but of several that revolve around a protagonist note – in the case of the song, a D played in the key of C), relating it to the current context of customs law in Brazil.

“Samba de uma nota só” refers to the search for the essence, to the concentration of ideas and energies around what really matters (whether in Law, in life or in love), as can be perceived from the beginning of the brilliant composition[4]:

“Here is this sambinha feito numa nota só

Other notes you will enter, but based on this only…”

🟦2. The context of Customs Law in Brazil, from the perspective of facilitation and control

In 2024, we dedicated an article to the foundations of the development of Customs Law in Brazil, highlighting that, in the 1980s and 1990s, while Argentina, Paraguay and Uruguay (founding members of Mercosur), as well as the European Community, consolidated their customs codifications, Brazil only managed to establish a regulation of Decree-Law 37/1966, disseminated by Decree 91.030/1985[5].

Since 1985, the international process of modernization of Customs, with the reduction of the use of paper in import and export procedures, the implementation of technological tools, the use of the Single Window (Single Window), risk management, compliance incentives, trade facilitation and rapid release of goods (with studies on release times), combined with audits a posteriori, marked a new procedural era, predominantly supported by normative texts expressed in international treaties such as the Convention on the Simplification and Harmonization of Customs Procedures (Revised Kyoto Convention – RCC) of the World Customs Organization (WCO) and the Trade Facilitation Agreement (TFA) of the World Trade Organization[6].

Brazil has acceded to both the WCO/CQR[7] and the WTO/TFA[8], and is clearly modifying its national legislation in the sense of the facilitation proposed by these international instruments.

The most explicit example, in relation to the CQR/OMA, was the implementation of the double degree of administrative jurisdiction in the application of the penalty of forfeiture, with the sanction of Law 14.651/2023, originating in Bill 2.249/2023, which clearly highlighted in its explanatory memorandum the objective of the measure: "...the deadline of December 5, 2022 should be considered for Brazil to adapt its legislation to the rules of the CQR/OMA", more specifically to rule 10.5 of its General Annex ("When an appeal filed with the Customs Administrations is rejected, the applicant must have the right to appeal to an authority independent of the customs administration"). Thus, a specific court was created for the judgment of the penalty of forfeiture in Brazil, contemplating the provision of two administrative instances: the CEJUL (Customs Penalties Trial Center), through the Order of the Minister of Finance No. 1.005/2023[9].

Regarding the AFC/WTO, several measures are also underway in Brazil, related to advance solutions, advance registration of declarations and authorized economic operators, for example[10].

A legal norm of utmost importance, which will consolidate the provisions on facilitation contained in the aforementioned international treaties and lay the foundations for the remodeling of Brazilian customs legislation, constituting a pillar for the codification of Customs Law in the country, is Bill 4.423/2004 (known as the "General Law on Foreign Trade - LGCE"), which began its proceedings on 13/11/2024, and which in its 170 articles collects the essence of the customs provisions on facilitation and customs control[11].

The LGCE incorporates the spirit of Tom and Newton's words, focusing on the essence, on the fundamentals of customs control and trade facilitation, in light of international best practices. Regarding what is not yet internationally uniform, Tom and Newton would say:

“How many people exist out there who talk so much and don't say anything?”

Or almost nothing…”

🟦3. The context of Customs Law in Brazil – topics absent from the LGCE

As explained, three important topics were left out of the LGCE, each for a specific reason that will be detailed here.

Regarding taxes, Brazil is going through a period of complete transition in taxation on consumption (including imported goods), which will basically be carried out through two twin taxes, with identical legislation, separated only by a question of powers of the federated entities: Tax on Goods and Services – IBS, and Contribution on Goods and Services – CBS[12].

The “Consumption Tax Reform” is profound, with a transition period until 2033. It was promoted by Constitutional Amendment 132/2023 and has been, to date, regulated by Complementary Law 214/2025, with its 544 articles, which address, among others, various issues with an impact on customs matters (travelers' goods, international postal shipments, special customs regimes, export processing zones, capital goods, the Manaus Free Trade Zone, and free trade areas). Thus, although it does not directly address import or export taxes, the reform will substantially affect foreign trade taxation in Brazil in the coming years, in a scenario that is still uncertain from the point of view of practical implementation and the impact on litigation[13].

And, speaking of litigation, Brazil is also undergoing a period of general reform of administrative litigation. The main rule governing the tax administrative process in Brazil (Decree 70.235/1972), which includes (unfortunately under the term "tax")[14] litigation on almost all customs and pecuniary matters, is about to be replaced by Bill 2.483/2022, which originally had 75 articles and, in the final stage of its legislative process, in December 2024, already had 113 articles, although it still shows little precision in the distinction between "customs" and "tax"[15].

The reform of the administrative litigation system promoted by Bill 2.483/2022, currently under consideration, and by other contemporary bills[16], whose legislative process is not yet complete, is not structural like the Tax Reform, but rather specific in nature, preserving most of the provisions (and the terminological and procedural contradictions and difficulties existing in the current litigation). If it was not a serious matter to treat "customs" as "tax" in the context of a rule written in past decades, doing so today, with the current degree of maturity of Customs Law, would be a serious mistake. Unlike the tax reform, which took examples from various countries and international best practices in value-added taxation, the reform of the administrative process did not seek an explicit basis in international best practices.

Finally, regarding the issue of customs penalties, although there is no bill pending on this in Brazil, the current scenario is worrying, with 175 different infractions subject to customs penalties (41 of them with loss of the merchandise, another 41 with warning sanctions, suspension and cancellation of records of participants, and 93 with fines)[17], some of them typically customs and others located in the area of ​​intersection with Tax Law.

The Brazilian customs infringement system, from a systemic perspective, would deserve improvements to eliminate from the infringement universe conducts that have become obsolete (such as that relating to vessels without a visible name on the hull, subject to loss)[18], and to balance apparently disproportionate penalties (such as the fine for non-compliance with temporary admission, of 10% of the value of the good, and the fine for transfer of name to conceal the real importer, at the same level of 10% of the value of the operation)[19].

It is true that the issue of violations and penalties is complex to standardize internationally, and there are no examples clearly recognized as best practices, although some basic assumptions can be identified in the two treaties described here (AFC/WTO and CQR/OMA)[20].

However, there are initiatives such as the one promoted by Directive 432/2013 of the European Parliament and of the Council, which help in grouping infringements according to their characteristics and the subjective element[21]. More recently, the European Union has intensified efforts to harmonize customs infringement legislation, although there are still no detailed and conclusive regulatory provisions[22].

From what is perceived, these three topics missing from the LGCE still need to be melodically shaped, gradually, seeking a better time for codification in Brazil. This does not prevent their essential provisions from being brought together in a general normative body, around the note we pursue, of codification of Brazilian customs legislation, in order to avoid frequent confusion with other branches of law, mainly tax law.

As Tom and Newton would say:

“I don't use everything on a scale

And in the end there was nothing left.

Don't give me anything

And I turned to my note…”

🟦4. Customs Code: the basis of a customs system

As explained, the wisest and most logical way to organize a customs system is through a regulatory framework that clearly establishes its institutions, distinguishing them from other legal segments or precisely identifying the points of intersection and their consequences.

Brazil is beginning to make efforts in this regard, starting with issues that already have international harmonization, through a General Foreign Trade Bill.

Given the existence of regulatory projects in progress (such as the one regarding administrative litigation) with dissonant potential, using other musical notes and scales, mixing tax and customs chords with cacophonous effects, it is necessary to rescue the basis of the melody, imagining the future construction, including with reference to successful experiences from other countries, of a specific customs litigation, provided for within a customs codification, free from the imprecise and sloppy use of institutes from other legal areas.

For customs legislation, the notes may change, as in Tom and Newton's handwriting, but the basis is the same: the Codification.

Therefore, once again we insist on the same approach, combining it with others, maintaining the foundation, so as to allow for the gradual evolution of Brazilian customs legislation, without embracing what is not essential (at least at this time).

Identifying the essence is the main motto of the music that gives name to our column today, and it ends with the same recommendation that we propose in our text:

“…I want all the notes

Re, mi, fa, sol, la, si, do

Always left with none

"Find a note only"

---

Highlighted

[1] Information available in https://enciclopedia.itaucultural.org.br/pessoas/4164-newton-mendonca. Accessed on: 19 jun. 2025.

[2] The reader can check the disc layer and the music in: https://discografia.discosdobrasil.com.br/discos/chega-de-saudade. “Desafinado” is the seventh song, with composition credited to Tom Jobim and Newton Mendonça. If you want to see João Gilberto playing “Desafinado” music live, we suggest the video available in: https://www.youtube.com/watch?v=g6w3a2v_50U. Both accesses em: Jun 19. 2025.

[3] The reader can check the disc layer and the music in: https://discografia.discosdobrasil.com.br/discos/o-amor-o-sorriso-e-a-flor. Accessed on: 19 jun. 2025.

[4] To listen to “Samba de uma nota só”, the music from the background of this column, the reader can choose between the violin version and voice of João Gilberto (available in: https://www.youtube.com/watch?v=r0Oz6HkdVaI), a piano and piano version with vocal and flute, with Tom Jobim (https://www.youtube.com/watch?v=naeq6fFmDpI) – favorite minha, ou same uma das tenzenas (or até centenas) de verses de “One Note Samba” recorded internationally, such as the award-winning album “Jazz Samba”, by Stan Getz and Chalie Bird (https://www.youtube.com/watch?v=mpu4V40KOqQ). To access some sources, such as scores and manuscripts of Tom Jobim on music, go to the Antônio Carlos Jobim Institute (https://www.jobim.org/jobim/handle/2010/4495). All accesses on: June 19. 2025.

[5] TREVISAN, Rosaldo. Or “awakening” of the Customs Direito in Brazil. Customs News, 19 Apr. 2024. Available at: https://aduananews.com/pt/el-despertar-del-derecho-aduanero-en-brasil/. Accessed on: 19 jun. 2025.

[6] We are aware of the moment of difficulty today experienced by the WTO, based on the absence of jurisdiction on the part of the Appellate Organization, and of unilateral conduct that violates two basic principles of foreign trade established post-war and calcified in the Uruguayan Roll of Multilateral Commercial Negotiations. However, despite the fulcral importance of these issues in the international geopolitical and economic-commercial scenario, the present study does not have to do with this scope (até pelas suas dimensões) to address this problem. On rates in the new geopolitical scenario, see: BASALDÚA, Ricardo Xavier. International trade law: bilateralism, multilateralism and regionalism. Legal Magazine of the Presidency of the Republic, Brasilia, v. 26, no. 140, set/dez. 2024, p. 546-566; MACEDO. Leonardo Correia Lima. Ad valorem Tariffs and Customs valuation: implications for the stability and predictability of national revenue from tariffs. Maastricht University, 2020; TREVISAN, Rosaldo. As Tarifas estão de volta; Conjur Electronic Magazine, 4 Feb. 2025, available in: https://www.conjur.com.br/2025-fev-04/as-tarifas-estao-de-volta/; and TREVISAN, Rosaldo. Pacta healthy servanda: the solution. Conjur Electronic Magazine, March 18 2025, available in: https://www.conjur.com.br/2025-fev-04/as-tarifas-estao-de-volta/, both accesses on June 19. 2025.

[7] Promulgated in Brazil by Decree 10.276/2020 (available in: https://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/decreto/d10276.htm), I have Brazil attached to the General Annex and the following Specific Annexes/Chapters: A-1; B-1; C-1; D-1 and J-1. Access in: June 19. 2025.

[8] Promulgated in Brazil by Decree 9.326/2018 (available in: https://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/decreto/d10276.htm). Accessed on: June 19, 2025.

[9] CEJUL has the power to issue a fine, provided for in art. 75 da Lei n^o 10.833/2003, applicable to the carrier, of passengers or cargo, in domestic or international travel, that transporting merchandise is subject to penalty of loss without identification of the owner or possuidor, or, even if the owner or possuidor is identified, the characteristics or the quantity of two transported volumes will be evident when dealing with merchandise. subject to said penalty.

[10] We recently discussed the implementation of the facilitation measures provided for in the AFC/WTO for Brazil in: TREVISAN, Rosaldo. The Trade Facilitation Agreement (TFA/WTO) and its Implementation in Brazil. Journal of Debates on Financial and Tax Law, University of Buenos Aires, year V, n. 14, Mar. 2025.

[11] We recently commented on the procedure of this Law Project, in: TREVISAN, Rosaldo. Pacta healthy servanda: the solution. Conjur Electronic Magazine, May 27 2025, available in: https://www.conjur.com.br/2025-mai-27/lei-geral-de-comercio-exterior-onde-anda-voce/. Access on June 19. 2025. In this article, there is mention of various others, which deal with specific topics of the Project.

[12] In addition to IBS and CBS, there will also be a Selective Tax, including on imports, for certain vehicles, aircraft and vessels, smoke-producing products, alcoholic beverages, sugary beverages, mineral goods, forecasting contests and fantasy sport.

[13] The Superior Court of Justice, in a working group destined to study the impacts of the Tax Reform on Consumption, estimates that the institution of CBS and IBS requires triple judicial litigation (available in: https://www.jota.info/tributos/reforma-tributaria-stj-diz-que-processos-vao-triplicar-e-critica-proposta-da-agu, accessed June 19, 2025).

[14] The first article of the original Projeto makes it clear, regrettably, that the word tributário is sometimes open to “customs” and other times not: “Art. following processes: (…) IV – determination and demand of credits relating to the imposition of pecuniary penalties provided for in the tax and customs legislation, except those subject to specific procedural legislation and…”.

[15] The project continues to indicate as synonyms (art. 2) the expressions “administrative process of determination and demand of tax credits” and “fiscal administrative process”. As pecuniary penalties, such as tax or customs penalties, in such art. 2nd, it is in a different subsection (V) from that referring to tax credit (II), creating unnecessary confusion between the terms. In this project, it is not possible to have a conclusive understanding about what would be a “tributary credit”, and when the word “tributário” would eventually be referred to as “customs”. Or art. 70, for example, which deals with CARF (Administrative Council of Fiscal Resources), currently the highest administrative instance, deals only with a special appeal for a decision that “the tax legislation divergent interpretation of what it has given another chamber”, seeming to suggest that there would be no special appeal in non-tributary matters, raised the risk of terminological distinction throughout the project.

[16] As PL 2.486/2022, on arbitration in tax and customs matters, already approved by the Federal Senate, with 34 articles.

[17] For a comprehensive view of the universe of 175 customs violations and penalties, in Brazil, refer to: TREVISAN, Rosaldo. A contribution to a comprehensive overview of the universe of customs infringements and penalties in Brazil, in search of systematization, in: TREVISAN, Rosaldo (org.). Subjects Atuais de Direito Aduaneiro III. São Paulo: Customs, 2022, p. 571-630. On pain of loss, please refer to: BRUYN JúnIOR, Herbert Cornélio Pieter de. Customs Direito: loss penalty. v. 2. Curitiba: Juruá, 2019; to FAZOLO. Diogo Bianchi. Customs Infrações in light of the International Customs Direito🇧🇷 Sao Paulo: Caput Libris, 2024; ea SEHN. Solon. Customs Law Course. 3. Ed. Rio de Janeiro: Forense, 2025, p. 583-627.

[18] Decree-Lei 37/1966, art. 104, V: “It applies to the penalty of loss of the vehicle in the following cases: (…) IV – when the vessel navigates within the port, without a written trace, in a prominent type and in a visible location of the hull, its registration name.”

[19] Law 10.833/2003, art. 72, I: “It applies to a fine of: I – 10% (ten percent) of the customs value of the market submitted to the special customs regime of temporary admission, or of temporary admission for active aperfeiçoamento, without compliance with conditions, requirements or deadlines established for application of the regime; (…)”; e Law 11.488/2007, art. 33: “A legal person who assigns his name, including through the availability of his own documents, for the performance of third-party foreign trade operations without the protection of his intervening parties or beneficiaries is subject to a fine of 10% (ten percent) of the value of the covered operation…”. This is being done on the same foot, with behaviors with absolutely different gravity potential and volitional elements.

[20] Regarding the influence of international treaties in customs infringement matters, see also the excellent literature directed by Germán Pardo Carrero (Customs Offenses and Sanctions. Bogotá: Tirant Lo Blanch, 2022); ROHDE PONCE, Andrés. Mexican Customs Law. Volume II. Mexico: Tirant Lo Blanch, 2022, pp. 1038-1043; VIDAL ALBARRACÍN, Hector G. Customs Criminal Law. Buenos Aires, Didot, 2018, pp. 649-672; COTTER, Juan Patricio. The influence of international treaties on customs violations, in: TREVISAN, Rosaldo (org.). Subjects Atuais de Direito Aduaneiro III. São Paulo: Customs, 2022, p. 163-201; e CARABAJO, Fernanda Inga. Harmonization of customs violations and sanctions: minimum legal standards and common criteria, in: PARDO CARRERO, Germán (dir.). Influence of International Law in the areas of tax and customs. Bogotá: ICDT, 2024, pp. 831-860.

[21] Available at: https://eur-lex.europa.eu/legal-content/PT/TXT/?uri=CELEX:52013PC0884R(03). Access on June 19. 2025. The aforementioned detailed directive, in three articles, 35 infrações, categorizing-as in “customs infringements with objective responsibility” (article 3º – 17 infrações), “customs infringements committed by negligence” (article 4º – 11 infrações), and “customs infringements committed intentionally” (article 5 – 7 infringements).

[22] It is worth highlighting, to identify the difficulties and points of approximation, a recent study in which various European jurists comparatively analyze the legislation of their countries, including what refers to customs sanctions (D'ANGELO. Giangiacomo. Aspects of Customs Control in Selected EU Member States. Bologna University Press, 2022), fruit of the Legal Seminar of the University of Bologna, whose scientific body includes professors Giangiacomo D'Angelo (Università di Bologna); Walter de Wit (Erasmus University Rotterdam); Santiago Ibáñez Marsilla (University of Valencia); and Hans-Michael Wolffgang (Universität Münster).