The Tax Disputes and Litigation Review: Brazil
Owing to the complexity of the Brazilian tax legislation, and the large volume of new rules issued daily at the federal, state and municipal levels,2 it is quite common for taxpayers to resolve issues involving taxes through litigation.
In addition, at the federal level, Brazil has always had one of the world's most efficient information-monitoring and cross-referencing systems, along with a remarkable organizational policy. On many occasions the Brazilian Internal Revenue Service (RFB) has launched tax compliance probes by electing specific topics that may have repercussions for several industries. This is known as 'audit waves', as has already happened with several other issues that have remained unexplored by the tax authorities for decades. These characteristics make the amounts collected by the Treasury through ex officio assessments grow exponentially each year.
According to figures from the National Council of Justice, in 2019 tax foreclosures represented 39 per cent of the 77 million legal claims pending judgment in Brazil.3 Additionally, the current number of cases pending judgment by the Administrative Council of Tax Appeals (CARF), the country's main administrative court, is 101,900 cases, totalling 704.3 billion reais in tax liability.4
Due to the large number of cases mentioned above, the resolution of a claim takes, on average, from two to seven years in the administrative sphere and from five to 10 years in the judicial sphere, which are the two most common methods of resolving litigation, as well as settling disputes. Nevertheless, there are specific cases that have been going on in the judiciary for over 20 years.5
In order to address this environment in the most effective way, companies must have a multidisciplinary overview of the cases, combining financial, mathematical, statistical and reputational aspects, attorney's fees, costs projection, other legal analysis, etc. For example, sometimes the biggest asset of a litigation involving tax and competition law is an intangible gain to the company's brand image, the value of which can be greater than the amount in dispute, while in other cases the reputational risk in a dispute involving a company could be a critical issue. We have also discovered cases being treated as 'tax cases' for 10 years while they could have been settled through a civil proceeding in three months. Firms and companies should broaden their horizons when addressing a possible tax issue.
Tax disputes may be initiated by taxpayers or tax authorities and held in the administrative or judicial sphere. Litigation may involve federal and state courts in legal cases, while the administrative ones may involve federal, state and municipal courts, depending on the nature of the tax subject matter of the dispute.
Only recently Brazilian legislation allowed direct settlement between tax authorities and taxpayers, and even so, the process is strictly regulated, as we will show in detail in the topics below.
As a rule, the tax authorities have five years to check on the regular compliance with the main and accessory obligations by the taxpayer.6 Should any non-compliance with tax obligations be verified through a tax audit, automatic cross-referencing of the taxpayer's returns or compared with those of taxpayers with a business relationship, etc., the tax authority may initiate an investigation procedure, in some cases allowing the taxpayer to amend its return or requiring additional information or explanation. If the case is not resolved in an investigation procedure, tax authorities will issue a tax deficiency notice, which may be challenged either at the administrative or judicial level, if the taxpayer does not agree with the tenor of such notice.
i Disputes in the administrative sphere
The discussion of the matter in the administrative sphere begins with the filing, usually within 30 days,7 of an appeal against the tax deficiency notice or against the decision that did not approve any offsetting made by the taxpayer. At the federal, state levels and in some municipalities, the examination of the administrative appeal in the first instance is performed by specific groups formed by tax authorities.
In the event the assessment or the decision that did not approve the offsetting is upheld, the taxpayer may file a new appeal. At the federal, state levels, and in some municipalities, the judgment on such appeal in the second instance is conducted by joint collegiate bodies composed of tax authorities and taxpayers' representatives appointed by trade associations.
In addition, at the federal, state levels, and in a few municipalities, there is a third appellate degree that, for the most part, is dedicated to the unification of positions adopted by the judging entities through the opinions expressed by the same or different chambers or panels of judges, depending on the structure of the administrative body concerned. In such cases, the taxpayer or the tax authority must submit proof of divergence between the opinions contained in the decision rendered in the specific case and another decision concerning the same matter.
In the event of a final decision favourable to the taxpayer, the tax authority, as a rule, is not allowed to appeal to the judiciary. On the other hand, in the event of a final decision favourable to the tax authority, the taxpayer may petition for a review of the matter in court.
ii Disputes in the judicial sphere
A tax dispute may be initiated in the judicial sphere in the event that:
- the taxpayer chooses not to refer the matter to an administrative court;
- an unfavourable administrative decision to the taxpayer is rendered; or
- in the case of an execution proceeding for enforcement of a tax liability.
In the first-instance court, the cases are tried by a single judge. Appeals against decisions of first instance are heard by a collegiate body composed of three judges.
Nevertheless, there is still a third level of review to which the parties may resort in certain situations and if specific requirements are met.
In the event of a decision that incorrectly applies or interprets a treaty or federal law, the parties may file a special appeal with the Superior Court of Justice (STJ). The decisions of this court are final and unappealable, except if there is still a constitutional issue to be considered.
If the decision incorrectly applies or interprets a constitutional provision and there is imminent social interest in the discussion, the parties may file an extraordinary appeal with the Federal Supreme Court (STF). The decisions of the STF are final and unappealable.
As a rule, taxpayers will be required to make a deposit or provide guarantees as a prerequisite to bringing a tax dispute in the judicial sphere and securing the issuance of a tax clearance certificate. However, there are exceptional cases in which a taxpayer may be allowed to continue with the legal proceeding without lodging a security for costs and be entitled to obtain the certificate mentioned above.
The courts and tribunals
Brazil has several administrative and judicial courts having different rules and levels of jurisdiction (i.e., federal, state and municipal). In the paragraphs below, we describe in detail the most relevant ones in terms of amounts in dispute and leading cases.
i Administrative Council of Tax Appeals (CARF) and Superior Chamber of Tax Appeals (CSRF)
CARF is the most relevant administrative body for judging disputes of a tax nature in Brazil and is responsible for analysing disputes involving federal taxes, including income taxes, corporate taxes, tax treaties, transfer pricing, etc. Before going to trial by CARF, cases are heard at administrative federal level by a court named DRJ, which focuses more on formal issues of the assessments and is composed solely of members of the RFB.
In the current year, Law No. 13,988/2020 established that DRJ will be the final federal level for tax disputes involving amounts up to 60 times the minimum wage, which at the time of writing corresponds to 66,000 reais.
CARF is composed of three sections, with the authority to examine issues involving different taxes, subdivided into four chambers of judgment formed by eight judges.
Depending on certain factors, such as the lack of uniformity in the decisions issued by CARF, the federal government and taxpayers may appeal to a second instance court pertaining to CARF locally known as CSRF, which is subdivided into three chambers made up of 10 judges responsible for unifying the prevailing opinions of the chambers. The positions of judges of each chamber and of the CSRF are filled equally by members appointed by the tax authorities and by representatives appointed by trade associations. The tax authorities have the prerogative to appoint the president for those chambers, who will have the deciding vote in the event of a tie. An exception can be made, according to the changes made by Law No. 13,988/2020, in cases where a draw has arisen regarding the applicability of the tax collection that must be decided in favour of the taxpayer.
In theory, the CARF and the CSRF have always been recognised for the technical quality of their members and for their ability to analyse complex issues, given that the corresponding judges usually have a solid education and track record in tax matters (contrary to courts of law where judges may have different specialties and deal with a high number of different issues). For this reason, it is quite common for matters involving sensitive, complex issues or large amounts (e.g., tax planning) to be discussed firstly at administrative level before taking the subject to a court of law.
ii Superior Court of Justice (STJ)
The STJ is responsible for unifying case law as to the interpretation and application of federal laws, including treaties. It is composed of 33 judges, chosen and appointed by the President of the Republic, from a three-name shortlist, and approved by the Federal Senate. One-third of the court must be composed of second-instance judges at state level, one-third by second-instance judges at federal level and one-third by public prosecutors and attorneys (equally divided).
Currently, the STJ is divided into:
- The Plenary, composed of all judges and responsible for examining administrative issues inherent to the court itself;
- The special court, composed of the 15 senior judges of the court and adjudicating criminal actions against state governors and other authorities. The court is also responsible for hearing appeals when there is divergent interpretation between the specialised panels of the court; and
- Three specialised sections, subdivided into two specialised panels composed of five judges. Both panels of the first judgment section are responsible for deciding cases involving tax matters.
Due to the large volume of appeals received and to implement the principles of celerity in the processing of reviews, equality of treatment of the parties and of firm legal basis, the system of 'repetitive appeals'8 was established, consisting of choosing a case that represents a relevant and highly frequent controversy for judgment, with the result being applied to others involving identical facts or matter. Note that the decisions rendered under the system of repetitive appeals are binding and must be enforced by other courts immediately.
With the exception of decisions involving constitutional issues, the decisions of the STJ are final.
The STF is responsible for the unification of case law regarding the interpretation of the Federal Constitution and has original jurisdiction over certain cases involving the constitutionality of legal provisions. The STF is composed of 11 justices appointed by the President of the Republic after approval by the Federal Senate, and is divided into: (1) the Plenary, composed of all justices and (2) two judgment panels, composed of five members each.9
Considering that the entire Brazilian tax system is outlined in the Federal Constitution, it is quite common for tax claims to be analysed by the STF, but this often causes long delays in resolving the merits of certain issues. During this year, considering the covid-19 pandemic, the court established virtual sessions of the Plenary and relevant tax matters were decided as, for example, ICMS on importation of goods; social contribution over the vacation bonus payment, etc.
In this context, and to reduce the backlog of appeals to be heard, to delimit the jurisdiction of the STF to constitutional issues with social, political, economic or legal importance and to standardise the interpretation of constitutional provisions, the system of 'general repercussion' was introduced. Based on this system, an appeal representing a particular and relevant controversy is chosen for judgment by the Plenary, the outcome of which will be applied, in a binding and automatic manner, to all other proceedings dealing with the same matter.
STF decisions involving tax issues may go beyond purely legal arguments, especially in cases where the disputes involve large sums. In fact, justices may use other grounds beyond the legal ones (e.g., economical) when analysing certain issues. For example, in a few cases the STF has imposed a limitation on the effects of a decision in favour of the taxpayer to protect the public coffers.
Penalties and remedies
The penalties applied by tax authorities may refer to late or non-payment of taxes, including cases of tax evasion, misconduct, fraud or simulation by the taxpayer.
Payment of overdue federal taxes is subject to a late payment penalty of up to 20 per cent, imposed automatically and regardless a tax deficiency notice.10
At the federal level, usually a tax deficiency notice for non-payment of taxes includes a 75 per cent fine. However, an aggravated fine of 150 per cent or 225 per cent may be applied in the case of wilful misconduct, fraud or simulation. In addition, in the case of non-approval of the tax credit offsetting claimed by the taxpayer, isolated fines varying from 50 per cent to 150 per cent11 may be imposed upon the occurrence of fraud.
There are also federal penalties for non-compliance with ancillary obligations. Fines can range from a small fixed amount or a percentage of the sales revenue or of the amount of a given transaction.
In the event of a tax deficiency notice, the taxpayer may challenge the notice at the administrative level, including the fine, or pay the tax liability within 30 days at a discount of 50 per cent of the fine.
Federal tax liabilities are subject to interest calculated based on the SELIC rate (a benchmark rate) established by the Central Bank of Brazil, which is currently 2 per cent per year.
However, fines for non-compliance with state and local tax obligations may vary depending on the nature of such non-compliance and the location. Likewise, states and municipalities may provide for interest on tax liabilities.
In addition, in the case of verified fraud, wilful misconduct or simulation, the issuing of a deficiency notice may cause the tax authorities to file a criminal action. To this end, the tax authorities must communicate the Prosecution Office through a tax complaint for criminal purposes whenever the occurrence of facts that may constitute a crime is verified. We note, however, that the Supreme Court has already expressed its opinion that the filing of a criminal action can only occur after the confirmation of the tax liability by an unappealable and final decision in the administrative sphere.
The negotiation between tax authorities and taxpayers regarding penalties commonly involves an instalment plan and recently a settlement programme, as will be discussed below.
i Recovering overpaid tax
The taxpayer may, within five years of the payment, request for a refund or offsetting of taxes overpaid or wrongly paid through administrative or legal proceedings.
The administrative procedures for refund and offsetting are provided for in RFB Normative Instruction No. 1,717/2017 and may be initiated by a taxpayer who has made an overpayment or undue payment of taxes.
Regarding the refund claim, once it is accepted, the amount of overpayment or undue payment is deposited in a bank account informed by the taxpayer. According to Law No. 11,457/2007 an administrative decision must be issued within 360 days from the date of filing of any petition by the taxpayer. However, it is common for the decision to take longer to be granted, and taxpayers may file for injunctive relief.
Offsetting, on the other hand, is a useful tool for those taxpayers who have current debts, as it makes a new payment unnecessary and allows the immediate use of a tax credit due to overpayment or undue payment. The tax authorities have five years to analyse the taxpayer's request, and after the expiry of this period, the offsetting claimed will be deemed to have been implicitly approved. On the other hand, it is noteworthy that the non-approval of the claimed offsetting will result in the requirement to pay the offset tax plus a late payment penalty of up to 20 per cent, other fines ranging from 50 per cent to 225 per cent and interest calculated based on the SELIC Rate.
Additionally, taxpayers may file a lawsuit claiming recognition of their right to obtain a refund or offset of overpaid or unduly paid taxes.
In the event that an action claiming the refund of taxes is granted, the taxpayer will receive the amounts by means of court payment orders. There is a history of long delays in the payment of court orders issued against certain state and local governments.
On the other hand, if any action seeking the recognition of offsetting of overpaid or unduly paid taxes should be decided in favour of the taxpayer, the taxpayer must submit a request through administrative channels to recognise the exact amount of the tax credit and enforce the offsetting, as there are several precedents in the sense that the judiciary does not have the power to offset tax credits.
Although the refund or offsetting procedure may take longer in the judicial sphere, whether because of the longer processing of any lawsuit, payment by court orders or the need for subsequent filing of an administrative request, a lawsuit may be more advisable in the event of disputed interpretation of the law or unconstitutionality of a given rule, as the administrative judge usually does not consider himself or herself able to rule out the application of a norm whose legality or constitutionality has not yet been definitively established by the superior courts.
ii Challenging administrative decisions
In theory, according to Brazilian Tax Code and Law No. 13,655/2018, previous decisions issued by tax authorities in administrative proceedings or even previous and repeated conduct adopted by them could be considered as complementary source of law and should be binding at federal, state and municipal levels, including the disputes held at courts of law.
Having said that, all decisions issued by tax administrative authorities could be challenged by taxpayers in courts of law. There are a few options of actions available to taxpayers in such cases to have some specific right declared, certain debts cancelled, to challenge the action or omission of an authority, etc. Nevertheless, whenever possible, our recommendation is to file an action for a writ of mandamus, a sort of legal action having a few prerequisites and limitations (e.g., in this sort of action it is not possible to discuss evidence but just the law), since it is a much faster proceeding, has lower court fees and the losing party is not required to pay attorney's fees that may reach up to 20 per cent.
Regardless of the sort of the judicial action chosen, usually all aspects involving a tax assessment could be challenged, such as formal aspects, debt quantification, interpretation of law, correct application of penalties and interest, etc.
Taxpayers may also initiate a consultation process at the administrative level to clarify how tax legislation applies to their specific case. The answer to such consultation (ruling) is binding on the tax authorities and the taxpayer, and the latter may appeal to the judiciary in case of disagreement with its content. The ruling may offer guidance to other taxpayers and RFB may decide that it has binding effect on all other cases heard by the tax authorities, which must follow that guidance.
Claimants entitled to bring a tax claim are taxpayers or individuals having a connection with the tax collection or obligations.12 In some actions and situations certain individuals and entities could join the proceeding as amicus curiae. As a rule, decisions issued at administrative and judicial levels are not binding upon all taxpayers, but a few exceptions may apply, as certain rulings issued by the RFB and relevant leading cases decided by the STF and STJ.
Claiming overpaid tax does not automatically affect connected parties or allow tax offsetting from different taxpayers. However, it can lead to a tax audit upon another party that may have considered such amount as a tax credit.
For some indirect taxes, in which the financial charge is transferred, the taxpayer must prove to have assumed the charge or provide express authorisation from a third party to request the refund. This may apply, for example, for ICMS, which is the Brazilian VAT, that is included in the price and not charged separately as in many other jurisdictions.
At the administrative level there are no costs or fees associated with the filing of remedies and appeals.
On the other hand, in the judicial sphere, it is necessary to pay court costs usually calculated based on the amount and nature of the claim. As an example, for disputes involving federal taxes, court fees amount to 1 per cent of the value of the claim capped to reasonable limits (current limit is 1,915 reais).
In addition, the losing party in a legal action must reimburse the costs and attorney fees of up to 20 per cent of the value of the claim initially borne by the prevailing party, except if the judicial measure involved is a writ of mandamus. The stipulation of said amounts may also be subject of dispute in courts, as the judge in charge of the case has discretion to freely establish the limit as previously mentioned.
Local legislation does not provide for any sort of reimbursement of fees paid by taxpayers, but deductions of costs and fees paid may be allowed by tax authorities in some circumstances.
As for the tax authority's costs, they refer to the internal activities and usually this amount is higher than the costs that must be paid by the taxpayer for filing the legal claim.
Alternative dispute resolution
Until recently, Brazilian law did not provide for alternative mechanisms for resolving tax disputes. In 2020, Law No. 13,988/2020 was published for the purpose of regulating alternative means of litigation involving federal taxes. According to this rule, the Attorney General's Office or the taxpayers may propose agreements whenever these satisfy the public interest and social welfare, in an individual approach in some events or in a general manner. The agreements may deal with overdue taxes, disputes in tax litigation involving an important and widespread legal controversy or small amounts, and also allow the payment in instalments, discounts on interest and fines, deferrals, moratorium or exchange of goods offered as guarantee (similar provisions are present in some states, as in Law No. 17,293/2020 from the state of São Paulo). The agreements cannot involve discounts on the principal amount in dispute.
In addition, the federal, state and municipal governments occasionally issue instalment programmes with discounts in fine and interest amounts.
However, the law does not yet provide for other alternative dispute resolution means concerning tax debts, such as arbitration or mediation.
In 2001, a new paragraph was added to Article 116 of the National Tax Code (CTN), creating the basis for the tax authorities to disregard, at domestic or international level, legal acts or transactions done with the intention of disguising the occurrence of the taxable event or to change certain elements of the tax liability. However, there is a controversy on whether this rule is self-enforceable and it also depends on regulation by ordinary law that, to date, has not occurred.
Still, tax authorities have been using concepts of civil law, such as simulation or abuse of form, to apply the concept of essence over form, which has no legal basis, or to disregard legal transactions or acts that allegedly resulted in tax savings based on the lack of business purpose argument.
However, Brazil, although not yet a member of the Organisation for Economic Co-operation and Development (OECD), is considered a collaborative country of the organisation and has repeatedly expressed its interest in joining it. In addition to indicating the interest in adopting base erosion and profit shifting (BEPS) measures, in recent years Brazil has introduced measures such as country-by-country reporting, mandatory disclosure of ultimate beneficiary of corporate structures, and automatic exchange of information on answers to tax ruling requests. It has also entered into agreements with the United States (Foreign Account Tax Compliance Act – FATCA) and the Global Forum on Transparency and Tax Information Exchange (CRS).
This shows that Brazil has been preparing, to some extent, to adopt stricter anti-avoidance control criteria.
Double taxation treaties
Brazil currently has DTTs with the following countries: Austria, Argentina, Belgium, Canada, Chile, China, the Czech Republic, Denmark, Ecuador, Finland, France, Hungary, India, Israel, Italy, Japan, Luxembourg, Mexico, Netherlands, Norway, Peru, Philippines, Portugal, Russia, Slovakia, South Africa, South Korea, Spain, Sweden, Trinidad and Tobago, Turkey, Ukraine and Venezuela.
Probably as part of its plan to join the OECD as a formal member, in the last decade Brazil has been trying to minimise conflicts involving treaties. Recent examples of this include inclusion of the Social Contribution on Net Profits as a tax covered by treaties after several litigation cases regarding this matter; and recognition that technical services should be classified as foreign company profit (subject to Article 7) in some specific treaties that did not regulate the matter, as this may grant a waiver of the taxation of certain transactions in Brazil – such as was also subject to litigation in the past.
Areas of focus
In recent years there has been a considerable intensification of enforcement procedures with the clear purpose of increasing revenue in a context of prolonged economic recession. Recent statements by the RFB13 indicate that special attention will be devoted to, among other matters, combating abusive tax planning, goodwill tax amortisation, corporate reorganisations and related parties' transactions, and benefits and incentives unduly enjoyed by foreign investors. Finally, this statement refers to a focus on specific transactions in some sectors, such as cigarettes, beverages and biodiesel/alcohol.
From time to time, the RFB launches tax compliance probes by electing specific topics that may have repercussions in several industries, what we call 'audit waves', as has already happened with several other matters that remained unexplored by the tax authorities for decades.
Two legislative bills are being discussed by the Brazilian Federal Senate and House of Representatives for a general tax reform, and the Brazilian government has presented a third one regarding a Contribution on Goods and Services. Out of the three, only the latter deals directly with taxation on digital services or platforms in the original text, although the first refers to 'all services' as well as intangible goods and there is a proposed amendment to the bill suggesting the creation of a digital services tax, and the second also refers to intangible goods.
Outlook and conclusions
In the context of companies with a global presence, Brazil is often the country with the highest rate of tax litigation, and in some cases, the number of or the amount involved in the disputes end up exceeding the sum of the numbers of all other places in the world. Moreover, given the characteristics of the RFB mentioned above and the legislative complexity and vastness, this trend is not likely to be reversed soon. In contrast, our lawmakers and some administrative authorities and courts of law are making significant efforts to make the proceedings less bureaucratic and time-consuming, but this scenario could only change significantly if a tax reform is made to simplify the tax environment in Brazil, which is being discussed by the federal government and the legislative houses.
Another aspect that contributes to the obscene litigation rates is the constant launching of instalment plans or payment programmes under more advantageous conditions, which encourages taxpayers to postpone the payment of taxes and file several claims to courts, allowing companies to undertake a multidisciplinary analysis as to the cost–benefit ratio – from a financial, reputational, operational and legal perspective – of their litigation management.
1 Adriano Gonzales Silvério is a partner and Filipe da Costa Lessa, Ana Beatriz de Souza Lima Cammarota, Bárbara Baiôco de Magalhães and Jade Bezerra are associated lawyers at ASBZ Advogados.
2 According to the research conducted by the Brazilian Institute of Tax Planning published in 2019, 403,322 tax rules have been issued since the 1988 Federal Constitution came into force. Available at https://migalhas.uol.com.br/arquivos/2019/10/art20191025-11.pdf.
3 As per Report published by the CNJ in August 2020. Available at https://www.cnj.jus.br/wp-content/uploads/2020/08/WEB-V3-Justi%C3%A7a-em-N%C3%BAmeros-2020-atualizado-em-25-08-2020.pdf.
4 As per the Management Report published by the CARF in November 2020. Available at http://carf.economia.gov.br/dados-abertos/relatorios-gerenciais/2020/dados-abertos-202011.pdf.
5 For example, the matter involving the inclusion of the ICMS (a non-cumulative VAT tax paid on the sale of goods and on the provision of certain services) in the tax base referring to the Contribution to the Social Integration Programme and to the Contribution to Social Security Funding.
6 In cases where the occurrence of simulation, fraud or wilful misconduct is verified, the time frame of six years applies. In addition, according to precedents, where the tax is not paid, the same six-year period applies.
7 Different time frames apply according to the sphere and place.
8 We refer to Article 1,036 of the Code of Civil Procedure.
9 The President of the STF may only participate in the Plenary.
10 The voluntary disclosure of a tax liability and payment thereof annuls such penalty.
11 In addition to the late payment penalty of 20 per cent.
12 Entities having the same status of taxpayers or the ones that may be considered jointly liable for such tax collection or obligation may also be entitled to bring tax claims.
13 We refer to the RFB Annual Audit Plan published in 2020. Available at https://receita.economia.gov.br/dados/resultados/fiscalizacao/arquivos-e-imagens/plano-anual-de-fiscalizacao-resultados-de-2019-e-plano-para-2020.pdf/view.