Brazilian Supreme Court limits tax penalties to 100% for evasion, fraud, or collusion

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Brazilian Supreme Court limits tax penalties to 100% for evasion, fraud, or collusion

Sponsored by

sponsored-firm-vrma.jpg
ballots-1195005.jpg

Paulo Victor Vieira da Rocha and Murilo Jakuk of VRMA Advogados discuss a recent decision by the Brazilian Supreme Court that ensures proportionality in tax penalties and strengthens legal protections for businesses

In the recent decision in Extraordinary Appeal 736.090, the Brazilian Supreme Court (Supremo Tribunal Federal, or STF) addressed the constitutionality of tax penalties imposed by the Federal Revenue Service (Receita Federal) for tax evasion, fraud, or collusion. Specifically, the STF examined whether a penalty amounting to 150% of the tax due violates the constitutional prohibition against confiscatory taxation.

Background of the case

The case centred on a fuel station in Camboriú, a city in southern Brazil, that was fined 150% of the tax owed on the ground of participating in a tax evasion scheme. The taxpayer contended that such a penalty was out of proportion and was against the constitutional ban on confiscatory taxes, as stipulated in Article 150, item IV, of the Brazilian Constitution.

Upon thorough deliberation, the STF unanimously determined that imposing a penalty exceeding 100% of the tax due implies a violation of the constitutional prohibition against confiscatory taxation. In the ruling handed down on October 3 2024, the court held that in instances of tax evasion, fraud, or collusion, the penalty should be limited to 100% of the tax owed. However, in cases of recidivism, the penalty may be increased to up to 150%.

This decision led to the definition of a binding precedent by the STF (regime de repercussão geral), which determined that "until a federal complementary law is enacted on the matter, the qualified tax penalty for evasion, fraud, or collusion is limited to 100% of the tax due, which may be increased to up to 150% in cases of recidivism, as defined in Article 44, §1-A, of Law Act 9.430/96, included by Law 14.689/23, observing also the provisions of §1-C of the cited article".

It is important to highlight that a regime de repercussão geral is a procedural tool used by the STF to filter the cases it reviews, ensuring that only those with broader legal or social implications are considered. Introduced by Constitutional Amendment 45/2004, the repercussion mechanism allows the STF to focus on matters that transcend the interests of individual parties, dealing with issues that affect the entire legal system or have significant national importance.

Implications of the Brazilian Supreme Court’s decision

This ruling significantly enhances legal certainty for Brazilian and foreign enterprises operating within the country. By clearly delineating the limits of tax penalties, the decision ensures that businesses are not subjected to excessive fines that could jeopardise their financial stability. Furthermore, the judgment reinforces the constitutional safeguard against confiscatory taxation, thereby fostering a more predictable and stable legal environment for economic activities.

By upholding the principles of proportionality and reasonableness in tax penalties, the STF's decision provides companies with a clearer framework for compliance and risk assessment, contributing positively to the overall business climate in Brazil.

Final considerations

In sum, the STF’s decision in Extraordinary Appeal 736.090 represents a pivotal moment for tax regulation in Brazil, establishing a clear boundary for penalties in cases of tax evasion, fraud, and collusion. By limiting fines to 100% of the tax due, with the possibility of increasing the penalty to 150% only in cases of recidivism, the court has reinforced constitutional protections against excessive and confiscatory taxation.

This ruling not only safeguards the financial stability of businesses but also promotes greater legal certainty, benefiting domestic and foreign enterprises. As Brazil continues to attract international investments, the assurance of proportional tax enforcement contributes to a more stable and predictable business environment.

more across site & shared bottom lb ros

More from across our site

While rarely the sole driver of a combination, tax is becoming an increasingly important part of firms' efforts to keep up with client expectations
New research, which suggests LLMs can silently corrupt complex documents, should alert tax and legal teams relying on AI to handle iterative drafting and compliance workflows
Maintaining increased funding for HMRC is a ‘high possibility’ if he becomes PM, ITR has also heard
Awards
ITR is delighted to reveal all the shortlisted nominees for the 2026 Europe Tax Awards
The firm has hired a team of private client lawyers from Withers to launch in New York and Connecticut, though ITR analysis suggests it faces stiff competition
The ability of tax authorities to receive and analyse data is becoming ‘quite advanced’, warns Stuart Lang, head of EY’s compliance co-sourcing solution
The Court of Appeal ruling clarifies that treaty benefits are not abusive where transactions are commercially driven, providing greater certainty on “main purpose” anti-avoidance tests
Despite the Netherlands featuring an unusual concentration of World Tax-ranked technology-led providers, sources believe there’s a long way to go to challenge the established players
Ethics seems to be playing a subservient role to an entitlement culture borne out of a pervasive ‘revenue at all costs’ mentality at the big four
Historical World Tax data suggests the ‘largest law firm merger in history’ may not pose a serious threat to the world's leading tax practices
Gift this article