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Overview

Legislation

What is the relevant legislation relating to tax administration and controversies? Other than legislation, are there other binding rules for taxpayers and the tax authority?

The Brazilian tax system is established by the Federal Constitution, which describes, in a very detailed manner, all collectable types of tax and the related federative entities entitled to collect it. In Brazil, the Federal Constitution affords a very detailed treatment to tax issues, determining the general aspects of taxable events and limits on the imposition of taxes.

The Brazilian tax code (Law No. 5,172/1996) establishes general tax rules (concerning aspects such as the definition of taxes, obligations, assessment, tax credits and the statute of limitations). In addition, each type of tax may be outlined in specific laws, which consist in a statute responsible for instituting taxes and governing all their aspects.

The tax system is guided by the strict legality principle, meaning that no other rule may contravene legal provisions settled in law. Furthermore, as the Brazilian Constitution provides for tax issues in details, such constitutional provisions must be strictly observed.

Competent authorities enact statutes (such as decrees, normative rulings, resolutions and ordinances) that, in theory, only serve the purpose of detailing and providing more practical rules related to what has been established in the constitution and in the pertinent laws. However, it is not unusual that such statutes end up creating rights and obligations not provided for in any laws or in the Federal Constitution, thereby exceeding their purpose and contributing to a litigation scenario in tax matters.

In addition, it is possible that other rules may arise in a more specific and practical manner, such as:

  • once the taxpayer requests the government to issue an opinion on the correct interpretation of a certain rule regarding a particular case, it becomes obliged to act in accordance with the government’s reply; and
  • once higher courts rule in a certain case, its ruling binds other members of the judiciary branch (this is a consequence of rulings in repetitive and general repercussion appeals).

International treaties signed by Brazil are incorporated in the domestic legal system by means of decrees. Once they become rules enforceable by the legal authorities, taxpayers must also comply with them.

As for litigation tax matters, there are different levels of discussion: administrative and judicial. Such matters will be discussed under the terms of the procedure rules provided in Brazil by the Brazilian Code of Civil Procedure. The Code of Civil Procedure currently in force was enacted in 2015 (Law No. 13,105/2015), as a result of a reform in the Brazilian procedural system, which expressly consists in the general law governing all procedures before administrative and judicial courts. In spite of this, special laws are enacted in order to rule on specific procedures that may take place at the administrative and judicial levels of litigation. The Brazilian Code of Civil Procedure should be applied in a subsidiary and supplementary manner.

Tax foreclosures lawsuits are governed by a specific law (Law No. 6,830/1980) and the procedure at the federal administrative level is governed by Decree No. 70,235/1972 and by Law No. 9,784/1999).

Relevant authority

What is the relevant tax authority and how is it organised?

Each federative entity (federal government, states and municipalities) has its own legislative structure for the purposes of administering and collecting taxes.

At federal level, taxes are enforced and inspected by the Brazilian Federal Revenue Service, a body subordinate to the Ministry of Finance, part of the Executive Branch.

The Brazilian Federal Revenue Service is divided into sub-secretariats that are responsible for collection and assistance, taxing and litigation, auditing and inspection, customs and international relations, and management of this public body. In addition, there are decentralised units for the audit and inspection of taxes and customs aspects.

Enforcement

Compliance with tax laws

How does the tax authority verify compliance with the tax laws and ensure timely payment of taxes? What is the typical procedure for the tax authority to review a tax return and how long does the review last?

The law provides several tax-reporting obligations for the taxpayer, and, in most cases, the taxpayer is liable for determining and paying the taxes to which it is subject. Currently, authorities at the Brazilian Federal Revenue Service have cutting-edge technology to enforce the law and inspect taxpayers, especially considering that most of the tax-reporting obligations are delivered and analysed in an exclusively digital environment.

To formalise the beginning of an inspection, authorities at the Brazilian Federal Revenue Office issue an Instrument of Distribution for Tax Proceedings in which the issuing authority can question the taxpayer, request documents and conduct on-site inspections or diligences. Tax proceedings may last between 60 and 120 days, and this period may be extended by the issuing authority as many times as it deems necessary.

With regard to the inspection of individuals who are subject to income tax, the procedure carried out by the Brazilian Federal Revenue Office consists in analysing the information filled in and delivered electronically by the taxpayer.

If the authorities at the Brazilian Federal Revenue Office identify any inconsistencies in the information provided, the taxpayer will be notified. At the office’s discretion, the taxpayer may either:

  • rectify the provided information and, if applicable, pay any unpaid tax; or
  • submit documents showing the accuracy of the information provided in the tax-reporting obligations.

Types of taxpayer

Are different types of taxpayers subjected to different reporting requirements? Can they be subjected to different types of review?

According to Brazilian legislation, taxpayers may be considered to be either enterprises or individuals.

As a general rule, enterprises are subject to one of the following taxation regimes: Simples Nacional, Actual Profit Regime (Lucro Real) or Presumed Profit Regime (Lucro Presumido).

Simples Nacional is a taxation regime that may be adopted by small businesses with an annual gross revenue of up to 4.8 million reais and consists in applying a single rate to its monthly revenue for all the taxable performed activities.

Regarding the Actual Profit Regime, for purposes of calculating the income tax and Social Contribution over the Net Profit, the taxable amount corresponds to the net profit of the period determined from its accounting information, after introducing certain adjustments, such as additions and exclusions, as provided by law.

The Presumed Profit Regime may be adopted by taxpayers who are not legally required to adopt the Actual Profit Regime, reporting an annual gross revenue of up to 78 million reais. Under such a regime, the taxable amount is obtained by the application of a prior fixed percentage to its revenue, regardless of the expenses recorded in its accounting.

With regard to income tax and social contribution over the net profit, enterprises should fill in and deliver electronically to the Federal Revenue Service a tax-reporting obligation, which consists of a document in which all transactions affecting the taxable base of such taxes are reported, as well as the relevant amounts due and payable to the federal government.

In addition, enterprises are required to fill in and electronically delivery to the Federal Revenue Service, the EFD-Contribuições. It is another type of tax-reporting obligation under which taxpayers provide information regarding determination of the social contribution.

If their activities are of commercial or industrial nature, enterprises should record and deliver electronically their tax books in order to comply with the tax-reporting obligation known as EFD-ICMS/IPI.

Individuals, in their turn, are subject, among other taxes related to specific transactions and business, to income tax, which is determined by means of a tax report prepared and deliver electronically to the Federal Revenue Service. This tax report can be delivered in one of two taxation models available (simplified and complete mode), which the taxpayer chooses taking into account the option resulting in the lowest tax burden.

Requesting information

What types of information may the tax authority request from taxpayers? Can the tax authority interview the taxpayer or the taxpayer’s employees? If so, are there any restrictions?

Generally, a taxpayer should present all the tax-reporting obligations provided in legislation. The tax authority may request and examine goods, books, files, documents and other papers in order to verify compliance with the tax legislation. Furthermore, it may also address written questions regarding the transactions and facts under analysis as well as making enquiries of the taxpayer, the taxpayer’s representatives or their employees.

However, it is common for tax authorities to require the presentation of other information in addition to the official documents and tax-reporting obligations required by legislation. Regardless of this, taxpayers are not obliged to present or disclose any information or document if the law does not require it.

Available agency action

What actions may the agencies take if the taxpayer does not provide the required information?

In the event that the taxpayer does not provide the requested clarification or fails to submit any files or documents requested by the tax authorities, the law provides that if the tax authorities are unable to determine the due and payable amount, they may decide such amounts based upon predetermined criteria, as well as increasing any relevant fines.

The tax authorities may also impose penalties for obstructing the tax-audit procedure.

Protecting commercial information

How may taxpayers protect commercial information, including business secrets or professional advice, from disclosure? Is the tax authority subject to any restrictions concerning what it can do with the information disclosed?

Information exchanged with the tax authorities is protected by the privacy of tax-related information (article 198 of the Brazilian Tax Code) and may not be disclosed to third parties. There are judicial precedents ruling that information provided solely to the tax authorities is subject to such privacy. Therefore, if the tax authorities require documents and information from taxpayers as provided by law, taxpayers cannot refuse to provide them based on confidentiality.

Attorneys and clients are not obliged to disclose messages, information or documents exchanged within the scope of an attorney-client relationship, as they are deemed confidential by the Code of Ethics and Discipline of the Brazilian Bar Association (OAB).

Limitation period for reviews

What limitation period applies to the review of tax returns?

In accordance with Brazilian laws, any challenge by the tax authorities regarding the procedures adopted by the taxpayer should be made within a term of five years counted from the occurrence of the relevant taxable events. Therefore, in the event that the tax authorities intend to verify whether the taxation adopted by the taxpayer and informed through its tax-reporting obligations are in accordance with the legislation or not, it should always proceed with the service of notices and request for information or clarification within that five-year term.

Alternative dispute resolution

Describe any alternative dispute resolution (ADR) or settlement options available?

Brazilian law does not allow alternative solutions for settlement of disputes regarding tax matters. Discussion of the lawfulness of tax collection may occur at administrative level or before judicial courts. If the taxpayer does not obtain a favourable decision at administrative level, they may resort to judicial courts. Discussion at administrative level may also occur by means of the filing of appeals by taxpayers and by the tax authorities. The main difference between discussing matters at administrative or judicial level lies in the need to present collateral at judicial level.

Collecting overdue payments

How may the tax authority collect overdue tax payments following a tax review?

Payment of taxes, even overdue ones, may always be made by the taxpayer, duly added to by a fine (at 20 per cent) and interest on late payments calculated at the SELIC rate (official interest rate calculated by the Brazilian central bank) at federal level. In the event of non-payment by the taxpayer, the tax authorities may seek appropriate court redress and file a tax foreclosure lawsuit. In the context of this lawsuit, the tax authorities may claim the presentation of warranties by the taxpayer in order to assure the payment of the debt under discussion, such as assets, rights and even a portion of the company’s income.

At the administrative level, in specific situations, tax authorities proceed with a measure intended to monitor the assets owned by the taxpayer in order to follow up its capability to pay the debts under discussion (arrolamento de bens).

Penalties

In what circumstances may the tax authority impose penalties?

Penalties are imposed by the tax authorities in cases of official assessment for collection of tax claims. Penalty percentages may be increased in the event of evasion, fraud and wilful misconduct, or in the event taxpayer obstructs the tax-audit procedure (the initial percentage at federal level is of 75 per cent, and may reach 225 per cent).

How are penalties calculated?

Penalty percentages are applied based on the amount of tax allegedly due and payable, as determined by the tax authorities. Tax authorities may also apply penalties for non-compliance with tax-reporting obligations, even if all the taxes have been fully paid.

What defences are available if penalties are imposed?

A taxpayer has the right to challenge penalties at both administrative and judicial levels. As a rule, the administrative level comprises three instances for taxpayer’s defence (defence, voluntary appeal and special appeal). Defence is judged by an administrative body formed by the tax authorities and appeals are analysed and judged by the administrative court called Conselho Administrativo de Recursos Fiscais (CARF). At CARF level, trials take place in judgment chambers formed by judges appointed by the tax authorities and taxpayers. At state and local administrative levels, there is also a due process of law, and appeals may be filed by both parties.

Collecting interest

In what circumstances may the tax authority collect interest and how is it calculated?

Interest is due whenever taxes are collected in arrears. At federal level, interest is calculated by means of the application of SELIC.

Criminal consequences

Are there criminal consequences that can arise as a result of a tax review? Are these different for different types of taxpayers?

In the event of verification and evidence of fraudulent acts, wilful misconduct or simulation perpetrated by the taxpayer, fines are increased to 150 per cent (at federal level). Once the practice of such acts is verified and the increased fine is applied, the tax claim will be formalised for criminal purposes, and criminal measures shall be suspended until the final outcome of the administrative proceeding. If the administrative proceeding has an outcome favourable to the taxpayer, the criminal suit will not move forward. Alternatively, in general, if the tax debt is not paid, the case record is forwarded to the Federal Prosecution Office.

Enforcement record

What is the recent enforcement record of the authorities?

In 2017, pursuant to information obtained from the Brazilian Federal Revenue Service’s website, an amount of 204,9 billion reais was the subject matter of tax-deficiency notices and 390,193 tax claims were filed. The focus of tax surveillance proceedings was on large taxpayers, which represent 0.01 per cent of taxpayers in Brazil and 61 per cent of the tax revenue.

Third parties and other authorities

Cooperation with other authorities

Can a tax authority involve or investigate third parties as part of the authority’s review of a taxpayer’s returns?

The Brazilian Tax Code imposes on third parties the obligation to provide information as support to the tax authorities and lists the persons required to deliver to the administrative authority information in their possession, namely:

  • government employees;
  • financial institutions;
  • asset managers;
  • brokers, auctioneers and official forwarding agents;
  • executors;
  • trustees, commission merchants and liquidators; and
  • any other entities or persons designated by the law on account of their activity.

It should be noted, however, that the obligation provided for in this provision does not embrace providing information regarding facts that the informing person or entity is bound to keep confidential by virtue of position, office, duty, ministry, activity or profession.

On the other hand, any unjustified refusal by a taxpayer or a third party to cooperate with the tax authorities may qualify as an obstruction to an inspection or audit, and may result in a fine by the tax authority.

Does the tax authority cooperate with other authorities within the country? Does the tax authority cooperate with the tax authorities in other countries?

Article 198 of the Brazilian Tax Code imposes on the tax authorities the duty to observe the privacy of tax-related information, preventing them from disclosing any taxpayer’s tax information.

It should be noted, however, that privacy of tax-related information is not absolute, and the transfer of protected information is allowed under exceptional circumstances provided for in the law.

Item I of paragraph 1 of article 198 of the Brazilian Tax Code authorises the tax administrations to furnish information protected by privacy of tax-related information to comply with a requisition made by a court authority in the interest of justice.

Article 199 of the Brazilian Tax Code also deals with the privacy of tax-related information duty in a flexible manner when allowing the sharing of tax information between entities of the federal government, which is conditional on an authorising legal or contractual provision.

At international level, the Brazilian government is an active participant in tax-cooperation actions intended to fight abusive practices of evasion, elision and money laundering, by means of the Brazilian Federal Revenue Office and the Ministry of Foreign Affairs, known as the Itamaraty Palace. Those actions include the Global Forum of Transparency and Exchange of Tax Information (FG) and the project designed to fight the tax base erosion and transfer of profits (BEPS).

Brazil’s adhesion to the FG, signed in 2011, will allow the country to comply with the G20’s collective commitment to carry on, up until 2018, the automatic exchange of tax information with the more than 130 signatories of the convention.

Likewise, Brazil is strengthening tax cooperation in the bilateral sphere. Currently, Brazil has 32 agreements to avoid double taxation in place. All such agreements include mechanisms for the exchange of tax information.

Special procedures

Voluntary disclosure and amnesties

Do any special procedures apply in cases of financial or other hardship, for example when a taxpayer is bankrupt?

Companies under court-supervised reorganisation may request admittance to the instalment payment programme instituted by Law No. 13,043/2014, which is a special instalment payment system of the federal government to taxpayers in that situation.

Instalment payment of the court-supervised reorganisation solely embraces debts registered as overdue federal tax liability and, to adhere to the programme, it is necessary to include all of the taxpayer’s debts in the instalment-payment facility. The debt may be divided into 84 monthly and consecutive instalments where it is not necessary to present collateral.

Are there any voluntary disclosure or amnesty programmes?

Federal, state and local governments often launch amnesty programmes to facilitate the settlement of debts from taxpayers.

Recently, the Municipality of Rio de Janeiro launched an amnesty programme to encourage the payment of tax debts from debtors in bankruptcy, judicial reorganisation, civil insolvency or insolvency risk, provided that they are properly evidenced in the accounts.

Decree No. 4,4639/18 regulates the implementation of conciliation agreements within the ‘Concilia Rio Program’, which are applicable to tax debts that, cumulatively, are not registered as active debt; refer to triggering events that occurred up to 31 December 2017; and involve:

  • Tax on Services;
  • Tax over Urban Real Property; and
  • garbage collection rate.

In addition to amnesty programmes, which are established from time to time, the Brazilian Federal Revenue Service permits, at any time, a simplified instalment payment, which is an ordinary instalment payment that extends payment of the debt in up to 60 monthly instalments. This instalment payment facility does not require the presentation of collateral, and may be made online.

Rights of taxpayers

Rules protecting taxpayers

What rules are in place to protect taxpayers?

The main rules protecting taxpayers’ rights are set forth in the Brazilian Federal Constitution. The tax authorities must observe such rules, as they correspond to limitations on the authority to tax of the states, municipalities and federal government.

Furthermore, government activities, including the collection of taxes, are generally bound by the law. This means that, in such cases, tax auditors should act as expressly provided for and within the limits of the law, under threat of having their actions held unlawful by the internal affairs department of government entities (administrative disciplinary control) as well as the judicial courts.

Taxpayers are also granted the right to challenge the legality of tax assessments at both administrative and judicial levels.

Requesting information

How can taxpayers obtain information from the tax authority? What information can taxpayers request?

In Brazil, any audit procedure begins with the presentation of a formal request, which contains the identification of the tax auditor and information about the audit procedure. Taxpayers may confirm the accuracy of such information with the tax administration electronically or at the tax authority’s office.

Furthermore, the Brazilian Federal Constitution grants taxpayers the right to have access to information held about them by public authorities.

In the event that access to any such information is denied or otherwise hindered by government entities, taxpayers may enforce the exercise of such right before courts.

Tax authority governance

Is the tax authority subject to non-judicial oversight?

The tax authorities are subject to internal oversight within the administrative government body, as they must act in strict compliance with the law. In that regard, tax assessments and audit procedures are subject to a quality and legality control carried out internally by the government body.

On the other hand, taxpayers are granted the right to challenge any tax assessments issued against them, at both the administrative and judicial levels.

Disputes involving tax assessments at the administrative level may be subject to different procedures, depending on the government entity. At the federal level, taxpayers are granted two levels of appeal within the administrative tax courts.

Court actions (describe trial court actions in this section)

Competent courts

Which courts have jurisdiction to hear tax disputes?

The Brazilian judiciary branch structure deliberates over three instances: the first and second instances and the higher courts.

At first instance, lawsuits are judged by a single judge, and this decision may be subject to appeal that will be judged by the competent court formed by a collective of appellate judges.

In turn, the decision made by the collective may still be submitted to the review of higher courts, also formed of collective bodies, each of which has a specific jurisdiction to analyse violations of constitutional provisions (Supreme Court (STF)) or federal laws (Superior Court of Justice (STJ)).

For the analysis of tax matters, the first and second instances of the judiciary branch have one federal structure divided into five regions, which are competent to analyse federal taxes, and one state structure for each state of the federation with jurisdiction to examine issues related to state and local taxes.

Lodging a claim

How can tax disputes be brought before the courts?

Court disputes in Brazil can be brought for preventive purposes (to prevent a deemed undue collection from occurring); for a repressive purpose (to avoid a collection already in force); or for purposes of recovering unduly paid tax amounts.

Court lawsuits may be begun for violations of constitutional or legal provisions, or in factual situations that are liable to support the taxpayer’s rights.

To file a lawsuit, the taxpayer must be represented by an attorney-at-law, who will file an initial pleading describing the factual situation, the right to be protected and the request or claim of the plaintiff. Such initial pleading should be accompanied by documentation supporting the taxpayer’s rights (depending on the type of action, there is an allotted time within which to produce evidence) and evidence of procedural cost payment.

Lawsuits may be filed by taxpayers and one may not file a lawsuit aimed at protecting a third party’s right in one’s own name. There are exceptional situations, however, admitting the filing of class action suits (which may be filed by certain entities expressly provided for in the law, such as senior representative associations) that may have erga omnes effectiveness.

The law does not impose a minimum or maximum limit of value to be discussed in court.

Combination of claims

Can tax claims affecting multiple tax returns or taxpayers be brought together?

In repeated situations affecting several taxpayers in an equal manner, and depending exclusively on a matter of law, either with respect to the tax or to accessory obligations, it is possible to file lawsuits consolidating several taxpayers in a joinder of plaintiffs, with due regard to the principle of reasonableness of the number of parties.

There are also situations allowing the filing of class action suits with erga omnes effects, which may be brought by specific individuals or entities.

Pre-claim payments

Must the taxpayer pay the amounts in dispute into court before bringing a claim?

Discussion of taxes before the courts does not require their early payment or a court deposit of the relevant amount.

The convenience of early payment of tax and of the court deposit should take into account the specific situation of the taxpayer and the requirement.

Cost recovery

To what extent can the costs of a dispute be recovered?

Procedural costs should be borne by the plaintiff and the appellant, provided that the winning party may ultimately claim from the losing party the court expenses incurred (not including attorney’s fees agreed upon directly by the taxpayer).

In addition to recovery of procedural costs, as a general rule (subject to certain exceptions), the losing party should be ordered to pay a loss of suit percentage fixed by the judge pursuant to legal criteria, allocated to the winning party’s attorney-at-law.

Third-party funding

Are there any restrictions on or rules relating to third-party funding or insurance for the costs of a tax dispute, including bringing a tax claim to court?

In general, to be granted a suspension of enforceability of tax claim, allowing the taxpayer to remain in good standing before the tax authorities and avoiding any collection acts, it is necessary to make a court deposit, or obtain a court decision expressly suspending the enforceability of the collection.

A court deposit may be made at any time, but it must be made in the name of the taxpayer, even if the financial resources for such purpose are provided by a third party.

On the other hand, the law provides for alternative collateral for the tax claim enforced against the taxpayer (particularly in tax foreclosures). In such situations, it is possible to present a bank surety letter, a guarantee insurance letter or other personal or real estate property owned by the taxpayer or by third parties.

Court decision maker

Who is the decision maker in the court? Is a jury trial available to hear tax disputes?

At first instance, lawsuits are judged by a single judge, and this decision may be subject to appeal to be judged by the competent court formed by a collegiate of appellate judges.

In turn, the decision delivered by the collective may still be submitted to the review of higher courts (STJ and STF), and also by collective bodies (justices).

In Brazil, there is no jury trial available to hear tax disputes.

Time frames

What are the usual time frames for tax trials?

There is no straightforward time frame for tax trials, but the best estimate for a suit that does not involve producing evidence, but matters of law only, is six to eight years, while suits involving factual issues may take between eight and 12 years to be decided.

Disclosure requirements

What are the requirements concerning disclosure or a duty to present information for trial?

In general tax judicial proceedings, there is a specific phase to provide evidence, in which both parties may present documents and expert and witness (uncommon) evidence.

This phase begins after the presentation of the defence of the defendant and the definition by the judge of the controversial aspects of the case. Afterwards, the lawsuit is judged by the first level court. There is also the possibility of an early consideration of evidence, initiated before the judicial courts, before the filing of the lawsuit. This is a procedural instrument to provide evidence, with the participation of both parties involved and under the custody of a judge, that may be used in a future legal lawsuit. The parties are not obliged to produce evidence against themselves, but good faith must guide the production of evidence in a judicial lawsuit.

Permitted evidence

What evidence is permitted in a tax trial?

The Brazilian legal system admits as evidence in tax proceedings the testimony of the party or testimonial evidence.

However, considering that the scope of facts in a tax proceeding currently embraces technical or accounting issues, the solving of which requires specific technical knowledge, the production of expert evidence is more common in such proceedings.

Permitted representation

Who can represent taxpayers in a tax trial? Who represents the tax authority?

At judicial jurisdiction, the defence of a taxpayer must be conducted by an attorney-at-law duly registered at the OAB. Representation of the tax authority is made by government attorneys, who are lawyers approved in competitive selective examinations conducted by the municipalities, the states and the federal government.

In the event that the taxpayer cannot afford to pay an attorney, Law No. 1,060/50 provides for the grant of free judicial assistance. However, court precedents do not have a uniform understanding as to the grant of such benefit to legal entities.

At administrative jurisdiction, it is not mandatory that the taxpayer’s defence be conducted by an attorney-at-law; the taxpayer may conduct his or her own defence. Defence of tax authorities at federal level is made by tax auditors at first instance and by government attorneys at second instance.

Publicity of proceedings

Are tax trial proceedings public?

Pursuant to the provisions of the caput of article 37 of the Federal Constitution of 1988 and of article 189 of the New Brazilian Code of Civil Procedure, all procedural acts are, as a general rule, of a public nature; that is, anyone may have access to the case record and to the judgments.

However, in the event that a certain matter is ordered to be prosecuted as a closed proceeding, access to the case record and to judgment sessions is permitted only to the interested parties.

In tax matters, closed proceedings may be ordered whenever the taxpayer attaches to the case record strategic information or confidential documents, or when there is suspected fraud under a pending criminal investigation, among others.

At administrative jurisdiction, access to case records is allowed only to the interested parties. However, judgments are opened to the public.

Burden of proof

Who has the burden of proof in a tax trial?

As a general rule, in the Brazilian legal system, the burden of proof lies with whoever asserts the claim, according to the provisions of article 373 of the New Code of Civil Procedure.

In tax law, for an administrative act to generate a presumption of validity and thereby reverse the burden of proof against the taxpayer, it must be well founded.

However, in the event of any administrative act being unduly founded, the taxpayer is not required to produce negative evidence, or any evidence of impossible production, it being enough to demonstrate that occurrence of the taxable event was unduly substantiated by the administration.

On the other hand, in the event that the nature of the claim is legitimate, it will be exclusively incumbent upon the taxpayer to produce evidence that their conduct did not violate the law. Thus, the burden of proof is reversed.

Case management process

Describe the case management process for a tax trial.

From the moment the taxpayer receives the proceeding notice, the term within which to file their defence and to request evidence production begins. If granted by the judge, the parties may start producing the requested evidence. Moving on, the case is remitted to the judge under advice to deliver a first instance decision.

If any party disagrees with the first instance decision, it is possible to file an appeal to be judged at second instance by the judging board composed of appellate judges and no longer by a single judge. At this time, the parties are allowed to present oral arguments.

From the decision to be delivered at second instance, it is still possible to appeal to higher courts. To file an appeal to the STJ, it is necessary to substantiate precedent dissension and violation to infra-constitutional laws, while to file an appeal to the STF, it is necessary to substantiate a violation to the Federal Constitution or to treaties, as well as the general repercussion of the disputed matter. Oral arguments are permitted.

Appeal

Can a court decision be appealed? If so, on what basis?

In the Brazilian legal system, if a party does not agree with a decision delivered at first instance by a single judge, it is possible to file an appeal to be judged at second instance by a board formed by three appellate judges.

From the second instance decision, it is still possible to file a special appeal to the STJ and an extraordinary appeal to the STF, conditioned on evidence of compliance with all legal requirements for the filing of both appeals.

At judicial courts, in accordance with the provisions of paragraph 5 of article 1,003 of the New Code of Civil Procedure, all appeal terms are standardised to 15 days, with the exception of a motion for clarification, the term for which remains five days and aims at reforming a decision delivered with any ambiguity, contradiction, omission or material error.