Tax litigation in Brazil: overview

A Q&A guide to civil and criminal tax litigation in Brazil.

This Q&A provides a high level overview of the key practical issues in civil and criminal tax litigation, including: pre-court/pre-tribunal process, trial process, documentary evidence, witness evidence, expert evidence, closing the case in civil and criminal trials, decision, judgment or order, costs, appeals, and recent developments and proposals for reform.

To compare answers across multiple jurisdictions, visit the Tax Litigation: Country Q&A tool.

The Q&A is part of the global guide to tax litigation. For a full list of jurisdictional Q&As visit www.practicallaw.com/taxlitigation-guide.

Contents

Overview of tax litigation

Issues subject to tax litigation

1. What are the most common issues subject to tax litigation in your jurisdiction?

Brazil is one of the countries with the most federal, state and municipal tax administrative and court proceedings under way. There are several reasons for this, including the following:

  • The primary factor for a significant amount of tax litigation is the fact that the Constitution of Brazil, enacted on 5 October 1988, provides for "Limitations of the Power to Tax" (Chapter II, section II, Constitution of Brazil). To protect taxpayers' rights and guarantees, constitutional lawmakers have increased the status of rules that set limitations on taxation powers of the federal government, the states, the federal district and municipalities. Consequently, taxpayers can challenge tax requirements that can be contrary to the principles set out in the Constitution.

  • The creation of taxes in Brazil must comply with the principle of legality. This means that, subject to a few exceptions set out in the Constitution, taxes can only be created (or increased) through laws enacted by the legislative branch. Therefore, the executive branch faces some strict limitations in the creation of new taxes. When these limitations are not complied with, the taxpayer can challenge the relevant tax obligations, which can be regarded as illegal and/or unconstitutional.

  • The Brazilian tax system is extremely complex and provides for federal, state and municipal taxes. Brazil is made of 27 states, with approximately 5,500 municipalities, and over 200 million inhabitants.

  • Brazil has an independent judiciary branch that has satisfactorily responded to society's demands. This means that taxpayers that file tax lawsuits benefit from a fair and impartial assessment of their claims in most cases.

In the authors' view, all these factors contribute to the high number of tax administrative and judicial proceedings. Law professionals face the challenge of conducting these proceedings in a way that ensures the protection of taxpayers' constitutional rights.

Taxpayers often file lawsuits to avoid taxation imposed by legislation on the ground that it does not comply with constitutional principles. The interpretation of legislation and its constitutionality are often the subject of tax judicial and administrative litigation.

The taxes challenged vary depending on the activity of the taxpayer. Given that all taxpayers are subject to federal taxes, the majority of lawsuits and administrative proceedings refer to these taxes. For taxpayers that sell goods, lawsuits concern the application of state taxes. Service providers often discuss whether these services are subject to taxation and, if so, which municipality is competent to collect the due tax.

Tax authorities can also audit taxpayers and, if required, file a tax assessment notice or tax infraction notice. Tax assessment notices discuss the interpretation of the legislation and of relevant facts. See Question 4.

Recently, the authors have noticed that tax authorities tend to file tax assessments to claim taxes, but also impose aggravated penalties when the conduct of the taxpayer is deemed to be fraudulent. This leads to the filing of a criminal investigation.

Most commonly, criminal tax litigation takes the form of a public criminal action filed by the Public Prosecutor's Office. If a final unfavourable decision is granted at the administrative level and there is no payment of tax (or payment in installments), the Public Prosecutor must file a criminal action to investigate a crime against the tax system.

In this context, the most common tax crimes are:

  • Fraudulent tax evasion (that is, failing to pay or underpaying tax by omitting information or submitting a false return to the tax authorities).

  • Misappropriation of pension monies (that is, failing to pay contributions collected from contributors to the social security system).

Legislative framework

2. Outline the legislative framework and principal pieces of legislation governing both civil and criminal tax litigation.

Civil tax litigation

The main rules invoked in civil tax proceedings are the:

  • Federal Constitution.

  • National Tax Code.

  • Code of Civil Procedure.

  • Other ordinary laws that serve as a basis for the collection of taxes.

Generally, ordinary laws set out tax obligations based on the Constitution (which grants taxation powers to the Federal Government, states, the Federal District and municipalities).

The National Tax Code sets out general taxation rules. The Code supplements the Constitution through:

  • Rules on conflicts of authority between the Federal Government, states, Federal District and municipalities.

  • Limits on taxation powers.

The Code of Civil Procedure contains rules applicable to judicial proceedings, which can also be applied in administrative proceedings.

Criminal tax litigation

The majority of crimes against the tax system are set out in Law No. 8.137/1990 (in particular Articles 1 and 2), which criminalises wilful misconduct aimed at evading or reducing the payment of taxes, thereby causing harm to the National Treasury.

Tax crimes also include misappropriation of, and evasion from, social security taxes (Articles 168-A and 337-A, Brazilian Criminal Code). These provisions protect the social security system.

See Question 3 for further detail on tax offences.

The Criminal Procedure Code sets out rules and principles regulating criminal proceedings in accordance with the Federal Constitution.

Tax evasion and other criminal tax offences

3. What are the key elements that constitute tax evasion and other main criminal tax offences in your jurisdiction?

It is a crime against the tax system to evade or reduce the payment of tax, social security taxes or any ancillary payments in the following ways (Article 1, Law No 8.137/1990):

  • Omitting information or making a false declaration to the tax authorities.

  • Defrauding tax inspections, inserting incorrect details or omitting any transactions in documents or records required under the tax legislation.

  • Falsifying or altering tax receipts, invoices, bills of exchange, bills of sale or any other documents relating to taxable operations.

  • Preparing, distributing, supplying, issuing or using documents that one knows, or should know, to be false or inexact.

  • Refusing or failing to supply, when required to do so, a tax receipt or equivalent document for the sale of goods or supply of services that have effectively taken place, or supplying them in violation of the law.

The crime of tax evasion is only punished if it is wilful (that is, the person's intention must be to defraud the tax authorities by any means). Therefore, a taxpayer's mere failure to pay tax is not evasion.

The following are also tax crimes (Article 2, Law No 8.137/1990):

  • Making a false return or omitting income, assets or facts, or using other fraudulent means to avoid paying a tax, in full or in part.

  • Failure to pay in a timely manner the amount of tax or social contributions discounted or collected.

  • Demanding, paying or receiving, for oneself or to the benefit of a taxpayer, any percentage on the deductible or deducted portion of a tax or social contribution, as a tax incentive.

  • Failing to apply, or applying in violation of the regulations, tax incentives or tax installments applicable to an organ or development entity.

  • Using or publishing a data processing programme allowing a taxpayer to possess accounting information other than that supplied to the tax authorities under the law.

Tax crimes under Article 1 are considered to be substantive (that is, tax must actually be evaded or reduced). Crimes referred to in Article 2 can be committed without the need to show that tax has been evaded or reduced.

Additionally, failure to pay contributions collected from contributors to the social security authorities on time or in the legal or conventional manner is a crime (Article 168-A, Brazilian Criminal Code). It is also illegal to evade or reduce social security contributions or any ancillary payments by the following means (Article 337-A, Brazilian Criminal Code):

  • Omitting from a company's payroll or documents submitted under the social security legislation any insured employee, part-time worker, self-employed person or other service provider.

  • Failing to enter into the company's books on a monthly basis amounts discounted from insured staff or due by the employer.

  • Omitting, in full or in part, any revenues or profits earned, compensation paid or credited, or any other events triggering social security liabilities.

 

Pre-court/pre-tribunal process

Assessment, re-assessments and administrative determinations in civil law

4. Outline the procedure for tax assessments, re-assessments and administrative determinations in civil law.

The Brazilian revenue authorities are the

  • Brazilian Internal Revenue Service, for federal taxes.

  • The state revenue services, for state taxes.

  • The municipal revenue services, for local taxes.

A tax assessment can be made following a tax audit. An assessment outlines the relevant tax payable and includes the amount of the tax, penalties and interest.

If in the course of a tax audit, the tax authorities believe that taxes were not collected due to fraud or a tax crime, tax penalties will be increased and the tax authorities will file a specific notice of infraction. This notice of infraction will be pending until the final tax assessment.

To challenge a tax assessment, a taxpayer must first bring administrative proceedings before the relevant administrative court. No security or guarantee is required to file administrative proceedings. After the preliminary defence is filed, the tax authorities will issue a decision. The taxpayer can file an appeal against this decision to the administrative court.

After a decision is made by an administrative court, the taxpayer can file a lawsuit in the judicial courts to challenge the assessment.

The filing of a tax assessment, at least at the federal level, gives rise to an automatic fine of 75% of the tax due. The amount of the fine can be doubled if it is established that the taxpayer also committed fraud.

In addition, interest is payable in accordance with the SELIC rate, an official rate that measures the variations in the Brazilian interest rate.

Resolving disputes before commencing court proceedings

5. What are the main procedures used to resolve disputes before commencing proceedings in a civil court/tribunal?

The laws of Brazil do not expressly recognise tax agreements. In other words, there is no legal or constitutional basis authorising taxpayers to negotiate with the government in order to reach an agreement on the final interpretation of the applicable legislation in respect of the tax due. As a result, a taxpayer that disagrees with certain tax obligations must challenge these obligations in court. The government can, if it considers that the taxpayer failed to comply with a certain tax obligation, file an administrative tax assessment against the taxpayer, preceded by a tax audit.

In the case of doubt regarding the interpretation of a tax rule, the taxpayer can file an inquiry with the government. The government's decision is binding and the respective tax must be collected within 30 days after notification of the relevant decision, without penalty, plus applicable interest. If the taxpayer does not agree with the interpretation provided, it can file a lawsuit to challenge it in the judicial courts.

Elements of the offence in criminal law

6. What are the elements of the main criminal law offences in tax litigation?

See Question 3 for information on the main criminal tax offences.

Early resolution

7. What are the main procedures used for the early resolution of criminal law offences before trial?

A criminal investigation can only start once the administrative proceeding is completed, and after the tax authorities have established the effective amount of the tax debt. This is because the Supreme Court ruled that Article 1 of Law No. 8.137/90 (which governs most criminal tax cases) is substantive, that is, a criminal offence can only be charged after the authorities have established that tax has definitely been evaded or reduced (Binding Precedent No. 24, Supreme Court). In other words, a criminal offence can only be charged and lead to criminal proceedings after a tax case has been completed at the administrative level, and the failure to pay tax has been recognised.

However, quite often, and frequently by mistake, a criminal tax complaint is submitted to the Public Prosecutor's Office before the administrative proceeding has been completed. In these cases, the line of defence adopted by taxpayers, and broadly accepted, is to apply immediately to the Public Prosecutor's Office stating that the tax debt is still under discussion so that there is no crime to be investigated, the criminal investigation should be halted and the police inquiry suspended. If the competent court determines that the investigation should continue, it is possible to apply for an order of Habeas Corpus to end the improper investigation, on the basis that no crime has been committed.

Once the administrative proceedings are completed and the amount of the tax debt is definitively established, there is a just cause to start a criminal prosecution to investigate a tax crime. This can start either through:

  • A police inquiry to determine the author of the crime.

  • An accusation (if the Public Prosecutor's Office believes it has sufficient evidence regarding the offender), which, if accepted by the competent court, will result in a criminal action.

A way to avoid prosecution is to pay the tax or agree to pay it in instalments as soon as the administrative proceeding is complete. Payment of the tax debt in full will release the taxpayer from the possibility of punishment and can be made at any time, even after the decision to prosecute is issued, provided that it is made before the final judgment (Article 9, paragraph 2, Law No. 10.684/03). However, payment in instalments can only be arranged before the criminal prosecution starts, in which case the state's punitive powers will be suspended (Law No. 12.382/2011). In the case of payment in instalments, the criminal action will be discontinued until full payment is made, and will be resumed in the event of default by the taxpayer.

 

Trial process

Format of the hearing/trial

8. What format does the hearing/trial take?

Hearings and trials are held in public sessions. Hearings/trials, as well as documents and information relating to the proceeding, are not made public in cases where the judge expressly orders confidential treatment at the request of a taxpayer.

The parties must, through their attorneys, be notified of all hearings and trials, and all other procedural acts. Provided that notice is duly given, hearings and trials will take place even when the parties or their attorneys are not present.

Role of the judge/arbitrator/tribunal members

9. What is the role of the judge/arbitrator/tribunal members in both civil and criminal tax litigation?

Civil tax litigation

The function of the judge or court in civil tax litigation is to determine the correct application of the right invoked by the parties, in most cases by deciding whether or not the tax is due.

The judge or court is only required to review the facts and the rights submitted by the parties, but can use any elements (even those outside the case records) to reach a decision. This is referred to as the "principle of free conviction of the judge".

Criminal tax litigation

Under Brazilian criminal law, the judge's function is to apply the law to the specific case. The judge must be impartial when ruling on the case brought by the Public Prosecutor against the defendant taxpayer, and decide whether or not a crime has been committed.

In a criminal trial, the judge must act as guarantor of the fundamental rights and guarantees of the accused.

Commencement of proceedings: civil law

10. What is the procedure for commencing tax litigation proceedings in civil law and/or a taxpayer appealing a decision of the tax authority?

A taxpayer does not have to pay fees to challenge a tax assessment in administrative proceedings.

On filing judicial proceedings, the taxpayer must pay court costs according to tables issued by the Federal Government and the states.

The time limits for commencing administrative proceedings are as follows:

  • The inquiry procedure (see Question 5) must be started before the tax is due. A taxpayer cannot file an inquiry if it is subject to a tax audit regarding the disputed tax.

  • Administrative proceeding for the offset of federal taxes unduly collected must be brought within five years from the taxable event.

The time limits for commencing judicial proceedings are as follows:

  • A writ of mandamus must be sought within 120 days from the act of the tax authority that threatens a taxpayer's rights.

  • An ordinary lawsuit seeking a declaration that a tax is not due must be brought within five years from the taxable event.

  • A taxpayer that wishes to avoid the filing of a tax enforcement action with the respective seizure of assets must bring an action within 30 days from the final decision in the administrative proceeding.

 
11. Must a taxpayer pay the disputed tax before leave to appeal the tax authority's decision is granted?

Taxpayers are not required to pay the disputed tax before the start of administrative proceedings.

However, if the taxpayer wants to contest a tax in a judicial lawsuit, it is likely that the court will require a warranty.

The court guarantee can be provided as a cash deposit, property, bank letter of guarantee or performance bond.

If the taxpayer seeks a writ of mandamus or files an ordinary action to challenge a certain tax obligation, it can request the judge to grant an injunctive relief or early relief to suspend the tax obligation and stay the payment of tax until the end of the litigation.

Commencement of proceedings: criminal law

12. What is the procedure for commencing tax litigation proceedings in criminal law?

Under criminal tax law, a criminal investigation can only start once the administrative proceedings have been completed (see Question 7). A crime can only be established once it is recognised that the tax has not been paid, and an assessment has been issued and registered as a tax debt (Binding Precedent No. 24, Supreme Court).

Once the administrative proceeding is completed, the tax authorities will send a criminal tax complaint to the Public Prosecutor's Office. Before starting a prosecution, the Office will normally call for a police investigation to determine the identity of the offender. However a police inquiry is not mandatory, and the Prosecutor can start a criminal prosecution directly if he believes that there is sufficient proof as to the identity of the offender.

Government response

13. How has the government responded to recent civil and criminal law cases to improve the court procedure?

Civil law

The New Code of Civil Procedure (Law No. 13105) which is intended to speed up the judicial process, will be effective from March 2016. However, it will take some time to assess whether the changes introduced will have the intended effect.

Additionally, the Federal Attorney General has also submitted a Bill that proposes to introduce tax agreements into Brazilian laws. These agreements are aimed at reducing the number of tax proceedings under way. However, the legislature has not examined the Bill yet.

Criminal law

There have been frequent changes to the legislation concerning the effects of payment and payment in instalments of the tax during criminal proceedings. The most recent law enacted on this matter is Law No. 12.382/2011, which provides that payment of the tax debt in instalments will only exempt the taxpayer from punishment if it is made before the commencement of the criminal action (see Question 7).

Burden of proof

14. What is the burden of proof in both civil and criminal tax litigation proceedings?

Civil law

In civil law, the burden of proof is on the party making the relevant allegation. Therefore, a taxpayer that files a lawsuit challenging a certain obligation must both:

  • Demonstrate the existence of the obligation.

  • Provide the judge with all the elements showing that the tax is illegal or unconstitutional.

In the case of tax execution proceedings filed by the government against taxpayers, the tax is presumed to be due and to affect the taxpayer's assets (for satisfaction of the tax obligation). Therefore, if the taxpayer intends to challenge a requirement under a tax execution order, it must first post a bond for court costs and then defend itself. The burden of proof is also on the taxpayer in these cases.

Criminal law

Under Brazilian criminal law, the burden of proof is on the prosecution, which submits the case before the court. The prosecution must prove the accusation. In the event of doubt following the criminal investigation, the defendant must be acquitted.

Main stages

15. What are the main stages of typical court proceedings for tax disputes?

Civil law

A taxpayer that files a lawsuit to contest a tax can generally expect that a preliminary decision will be granted up to ten days after filing. If appropriate, expert evidence can be produced and the first instance decision will be issued after one or two years.

An appeal can be submitted to the relevant state court, which can take up to three years to issue a decision. The taxpayer can then file an appeal to the Superior Court of Justice and/or Supreme Court, and it can take three or four more years to obtain a final decision.

Criminal law

A criminal investigation can only start once administrative tax proceedings are completed, through the submission of a criminal tax complaint. The Public Prosecutor's Office then decides whether to call for a police inquiry or to start a criminal prosecution.

A police inquiry is a preparatory procedure to a criminal prosecution. It is an administrative investigation carried out by the police authorities and intended to collect evidence regarding the existence of a criminal infraction and the identity of the offender. In the case of a tax crime, the purpose of the police inquiry is to identify the person responsible for the crime, as the materiality of the offence has already been demonstrated by the tax authorities.

Once the investigation is complete, the police inquiry will be sent to the Public Prosecutor's Office, which can then take one of the following steps:

  • Make a formal accusation.

  • Return the procedure to the police for further investigation.

  • Withdraw the charge (which rarely occurs, since the tax authorities will have proved that a crime was committed).

The Public Prosecutor's Office will go to court if it considers that there is reasonable evidence of the materiality of the offence against the accused.

Once an accusation is made, the competent court will examine it and accept to open a criminal trial if it believes that the accusation is admissible under the law.

During the court phase, a preliminary defence is presented (Article 396-A, Criminal Procedure Code) and analysed by the court. The accusation is then confirmed or rejected. The accusation will only be rejected if there is an obvious illegality (Article 397, Criminal Procedure Code).

Once the criminal case has been accepted, a date is set for the hearing of evidence, during which witnesses will be heard (including expert witnesses, if any) and the defendant questioned. At the end of this stage, the parties must submit their arguments orally or, if permitted by the judge, in writing (Article 403, Criminal Procedure Code). The judge will then issue the criminal judgment.

 

Documentary evidence

Disclosure of documents in civil proceedings

16. What documents must the parties disclose to the other parties and/or the court in civil proceedings? Are there any detailed rules governing this procedure?

All documentary evidence filed by one party must be disclosed to the other party, under penalty for non-compliance with the adversarial principle. Non-compliance will lead to the nullity of the judgment rendered.

During the tax assessment, documentary evidence is the main type of evidence used to demonstrate whether the tax payable has a legal basis.

Although all evidence is admitted in ordinary claims, in practice, the most common type of evidence that is accepted is documentary evidence.

Special rules/considerations

17. Are there any special rules or considerations concerning the disclosure or discovery of documents in civil tax litigation?

Documentary evidence submitted by one party must be disclosed to the other party. However, a party can request the court to order the confidential treatment of some information, so that only the parties involved in the proceeding can have access to it.

All communications between lawyers and clients are protected from disclosure to the authorities and other parties.

Disclosure in criminal proceedings

18. What documents must the parties disclose to the other parties and/or the court in criminal proceedings? Are there any detailed rules governing this procedure?

Under the Brazilian rules of criminal procedure, admissible evidence includes documentary, oral and expert evidence. Evidence must be obtained legally.

The judge must determine the evidence that he considers pertinent and reasonable to ascertain the facts of the case. However, such evidence must be collected/produced during the court proceedings.

Under the adversarial principle, each party can reply to any allegation of fact or submission of evidence made by the other party during the trial. Accordingly, the parties must have access to all the evidence and can comment on it. This is to create a balance between the prosecution and the defence.

Special rules/considerations

19. Are there any special rules or considerations concerning the disclosure of documents in criminal tax litigation?

Paragraph XII of Article 5 of the Federal Constitution protects confidentiality of correspondence, telegraphic communications, data and communications, except in cases determined by the courts for the purposes of criminal investigations or the production of evidence during the court phase.

In the course of a tax inspection, the Federal Revenue has unrestricted access to a taxpayer's tax documents. However, tax information does not include banking details. The prevailing view is that such details can only be available under a court order, or will otherwise be inadmissible. However, this issue is subject to intense legal debates, and the various Brazilian courts have different views. Although the Supreme Court ruled that a court order is necessary, it has recently indicated that it will review its decision.

A defendant in criminal proceedings is not obliged to produce self-incriminatory evidence, but the state can breach rights to secrecy and authorise search measures to obtain evidence.

All communications between lawyers and clients are protected from disclosure to the authorities and other parties.

 

Witness evidence

Trial considerations

20. Do witnesses of fact give oral evidence or do they just submit written evidence? Is there a right to cross-examine witnesses of fact?

Civil law

Witness evidence is not admitted in administrative proceedings. In the course of an inspection, a company will be summoned to present documents and information that will be the basis for a tax assessment. However, no witness can be summoned for clarifications or explanations.

Witness evidence is allowed in judicial proceedings, although it is not very common, as a finding of tax liability must be strictly based on the establishment of legal requirements.

Criminal law

Under Brazilian criminal law, witness evidence is considered as the primary means of evidence. The standard method is to hear evidence orally, taking into account the effective meaning of each witness's testimony on the facts or persons involved. A party can question the other party's witnesses, in accordance to the adversarial principle. Written evidence is only permitted exceptionally, as this would prevent the parties from questioning witnesses and violate the adversarial principle.

Witnesses must be impartial and tell the truth, or can otherwise be charged with perjury.

Both the prosecution and the defence can present witnesses up to the limit permitted by law for the proceedings. Since the enactment of Law No. 11.690/2008, questions are directed by the parties directly to the witness, and the judge will not allow leading questions, irrelevant questions or questions that call for the repetition of a previous answer (Article 212, Criminal Procedure Code).

Witness preparation

21. Provide a brief outline of the procedure for preparing witnesses in both civil and criminal cases. Are there any special or unique features to consider for witness evidence in criminal cases?

Civil law

Witness evidence is rarely used in tax civil litigation (see Question 20, Civil law). Misrepresentation by a witness in court is a crime under Brazilian criminal law.

Criminal law

In criminal actions concerning the alleged commitment of crimes against the tax system, the defence can present up to eight witnesses for each defendant and for each fact alleged. The choice of witnesses by the defence will depend on the case in question. Generally, the defence will call witnesses who can prove that no crime was committed, that the crime was not committed by the defendant, or who can vouch for the professional and personal soundness of the accused, which can have an impact on the severity of the penalty applied.

Hearsay evidence in civil and criminal trials

22. Are there any rules concerning the introduction of hearsay evidence in civil and criminal trials?

Civil trials

In most cases, witness evidence is irrelevant in civil court proceedings involving tax matters.

Criminal trials

Any testimonial evidence is admitted in Brazilian criminal proceedings, but such evidence will be weighed according to its relevance and the specific context. In other words, hearsay evidence must be compared with any other evidence collected. In practice, the evidential weight of hearsay evidence is low in criminal trials.

 

Expert evidence

Expert reports in civil trials

23. What are the rules concerning the introduction of expert reports in civil trials?

Expert evidence and reports are admissible in judicial proceedings, and are used whenever technical clarification is required. The clarification must be made by a professional who is qualified to give opinions on the relevant topic. Experts are appointed by the judge. Parties can request the judge to appoint an expert.

When the production of expert evidence is requested, and after the expert is appointed, the parties can monitor the work of the expert, enquire into his methodology and comment on his final report.

Expert evidence in civil trials

24. What are the rules concerning the introduction of expert evidence in civil trials?

See Question 23.

If a taxpayer needs a technical clarification of facts, it must produce such evidence before the first decision is granted. Procedural law does not allow evidence to be produced after the issuance of the first decision.

If the taxpayer files a writ of mandamus, expert evidence must be produced before the filing of the lawsuit and included with the petition, as no evidence can be produced after the filing of a lawsuit.

Expert evidence and reports in criminal trials

25. What are the rules concerning the introduction of expert evidence in criminal trials? Is it possible to introduce expert reports?

Expert evidence

Expert evidence is very important in tax trials and is considered technical evidence. An expert is a person with scientific skills who can assist the court. In criminal proceedings, an expert is called to give an opinion on some fact or circumstance, which is of interest or required for the investigation or the proceedings.

Expert evidence, whether from official experts or from individuals engaged by the parties, is broadly accepted in Brazilian criminal proceedings, and is only rejected if it is not relevant to a decision on the case.

Expert reports

See above, Expert evidence.

Special considerations

26. Are there any special considerations for introducing expert evidence/reports in both civil and criminal trials?

Civil trials

After being appointed, the expert will request initial fees to start his work, which are borne by the party who requested the expert evidence, or by both parties if they both requested the appointment of an expert. The expert's fees must be specified on delivery of the final report. At the end of the proceedings, the defeated party will pay for the expert's fees.

Criminal trials

When expert evidence is given by official experts, the parties and the judge can put questions to them. Additionally, since 2008 (Law No. 11.690/2008), the parties can also appoint a technical assistant to prepare an opinion on the evidence given by official experts.

Expert evidence provided by private experts will be added to the proceeding as documentary evidence to be assessed by the judge. The parties can also make a request for the experts to be heard at the evidence hearing and judgment stage, to explain the reports submitted.

The judge is not bound by the conclusion of expert reports, and can take a different view if it is justified.

 

Closing the case in civil trials

27. What are the rules governing the submission of both written and oral argument in closing a civil trial?

The general rule is that the arguments must be submitted in writing in both administrative and civil judicial proceedings.

However, in appeals reviewed by the competent courts of appeals, the parties can state their reasons orally to the judge immediately before the reporting judge issues the decision.

 

Closing the case in criminal trials

28. What are the rules governing the submission of both written and oral argument in closing a criminal trial?

Under Brazilian criminal law, both oral and written arguments are accepted.

In the initial phase of a criminal trial, when the accusation against the defendant is accepted, a written defence is submitted, which includes:

  • Preliminary pleas.

  • All the arguments made on behalf of the defendant.

  • Presentation of documents as evidence.

  • A request for the production of evidence during the court phase.

At this initial stage of analysis, the judge can prevent the trial from continuing if there is a procedural error in the prosecution's accusation, or if it is clearly inadmissible and unsupported by the evidence. If this is not the case, the judge will determine that the trial should continue.

At the end of the trial, as a rule, each party will make a final statement before the judge. However, if a case is very complex or there are many defendants, the judge can announce a date for final statements to be submitted in writing. The judge will then render a judgment.

 

Decision, judgment or order

Civil law cases

29. What are the rules governing the issuance of a decision in civil cases?

All decisions must be in writing and duly explained by the judge. In the case of doubt, contradictions or omissions, a party can file a specific appeal called a motion for clarification. The decision on the motion for clarification will be issued by the judge who issued the original decision.

Although there is a deadline to issue decisions (that is, ten days after the evidence was produced in court) in practice, due to the high number of proceedings under way before Brazilian courts, it usually takes several years to obtain a judgment.

Criminal law cases

30. What are the rules governing the issuance of a decision in criminal cases?

As a rule, the parties must submit their arguments orally at the end of the trial (Article 403, Criminal Procedure Code). In these cases, the judge will then issue the criminal judgment. However, due to the complexity of the case or the number of defendants, the judge can announce a date for final statements to be submitted in writing. The judge must then issue a decision within 10 days (Article 403, paragraph 3, Criminal Procedure Code). However, this requirement is generally not respected.

Additionally, as for decisions in civil cases, all decisions in criminal cases must be in writing and duly explained by the judge.

 

Costs

31. How is the issue of costs determined in both civil and criminal cases?

Civil law

The defeated party must pay for the costs of the winning party (including initial court costs and experts' fees).

Writs of mandamus are the only judicial proceedings for which there is no obligation to pay the winning party's costs.

The court cannot award interest on the amount payable in the judgment.

Criminal law

No costs are awarded in criminal cases brought on the state's initiative, which are those relating to tax crimes. Criminal proceedings do not have a specific "value", so the outcome of a trial will not affect the defendant's wealth.

 

Appeals

Right to appeal in civil law

32. What are the main grounds for appealing a civil law decision?

In both administrative and judicial proceedings, a decision against the federal government, states or municipalities is subject to two levels of review. This means that a state court must review the decision even if there is no appeal. If the decision goes against the taxpayer, the taxpayer will have the right to appeal against the decision to the court.

In administrative proceedings, the most common ground for appeal is the existence of a court precedent that conflicts with the decision. In this case, the entity that is competent to assess this appeal will be another formation of the court that made the decision. There are further grounds for appealing an administrative court's decision, but typically these appeals will only be allowed if some other requirements are met.

All judicial trial court decisions can be appealed by the defeated party on points of law and findings of fact.

The parties have a right to appeal against first instance decisions to the relevant state court. Decisions of the states court can be appealed to either or both the:

  • Superior Court of Justice on the ground of violation of federal law.

  • Federal Supreme Court on the ground of violation of constitutional rules or principles.

Procedure to appeal in civil law

33. What is the procedure for appealing a civil law decision?

Usually, fees are payable to appeal a trial court decision. Deadlines to file appeals are set out in the Code of Civil Procedure, and vary depending on the type of appeal.

Right to appeal in criminal law

34. What are the main grounds for appealing a criminal law decision?

It is a basic principle of criminal law that a party has the right to have a first instance decision reexamined by a superior court.

Procedure to appeal in criminal law

 
35. What is the procedure for appealing a criminal law decision?

The parties can appeal against court decisions, in full or in part, to a higher court that has jurisdiction over the matter, which can be a state or the Federal Court.

The deadlines for filing appeals are set out in the Criminal Procedure Code and vary depending on the type of appeal. In the case of an appeal to review the merits of a judgment, the applicable deadlines are:

  • Five days from the date of the ruling, for indicating disagreement with the ruling.

  • Eight days from the date of the ruling, to submit the briefs for the appeal.

Once an appeal is decided, another appeal can be filed before the:

  • Superior Court of Justice on the ground of violation of federal law.

  • Federal Supreme Court on the ground of violation of constitutional law.

There are no court fees.

 

Recent civil law developments and proposals for reform

36. Outline the main recent civil law developments in tax litigation in your jurisdiction. Are there any proposals to reform civil law tax litigation?

The most recent change affecting civil tax proceedings is the approval of the New Code of Civil Procedure, which will be effective from March 2016, and is intended to speed up court proceedings.

 

Recent criminal law developments and proposals for reform

37. Outline the main recent criminal law developments in tax litigation in your jurisdiction. Are there any proposals to reform criminal law tax litigation?

The Binding Precedent No. 24, issued in 2009 by the Federal Supreme Court, held that a substantive crime against the tax system, as described in Article 1, paragraphs I to IV, of Law No. 8.137/90, cannot take place before a definitive tax liability has been determined. This is to prevent premature or unfounded investigations.

 

Online resources

Federal Supreme Court

W www.stf.jus.br

Description. This is the official website of the Federal Supreme Court, which is the highest judicial body in Brazil and has jurisdiction over the whole national territory. The main role of the Federal Supreme Court is to guard and interpret the Constitution. The Supreme Court is responsible for deciding matters related to the Constitution and matters on which there is doubt or controversy, through special legal actions that serve to evaluate the constitutionality of laws and matters. The Federal Supreme Court also decides on appeals in the last instance and on matters regarding its jurisdiction. The website publishes reports of significant decisions and gathers the Court's constitutional jurisprudence.

Brazilian law (Federal Government)

W www4.planalto.gov.br/legislacao

Description. This is an official website that provides access to Brazilian legislation.



Contributor profiles

Glaucia Lauletta Frascino, Partner

Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

T +55 11 3147 7692
F +55 11 3147 7770
E glaucia@mattosfilho.com.br
W www.mattosfilho.com.br

Professional qualifications. Brazil, Lawyer; Bachelor of Laws, Pontifícia Universidade Católica de São Paulo

Areas of practice. Tax.

Recent transactions

  • More than 25 years' litigation experience representing clients in the highest courts of Brazil, the Superior Court of Justice and the Federal Supreme Court, in controversial tax disputes.
  • Advising domestic and foreign clients, from all industries and business sectors, on federal, state and municipal tax matters.
  • Awards: Chambers Latin America-Tax: Litigation (2010-2016); Chambers Global-Tax: Litigation (2014-2015).

Languages. Portuguese, English

Professional associations/memberships.

  • International Bar Association.
  • Tax Committee, US Chamber of Commerce.
  • Women Corporate Directors Foundation.

Isabel Bueno, Partner

Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados

T +55 11 3147 7692
F +55 11 3147 7770
E isabel@mattosfilho.com.br
W www.mattosfilho.com.br

Professional qualifications. Brazil, Lawyer; Bachelor of Laws, Pontifícia Universidade Católica de São Paulo; Postgraduate Degree in Constitutional Law, Pontifícia Universidade Católica de São Paulo

Areas of practice. Tax.

Recent transactions

  • Representing clients in tax-related matters in both administrative and judicial proceedings.
  • Significant experience in matters relating to executive compensation and benefits.
  • Awards: Chambers Latin America – Tax: Litigation (2012–2015); Chambers Global – Tax: Litigation (2014–2015); IBA - Outstanding International Woman Lawyer, 2012. ​

Languages. Portuguese, English

Professional associations/memberships. Vice-Chair, IBA's Women Lawyers' Interest Group. ​

Celso Sanchez Vilardi

Vilardi Advogados

T +55 11 3262 0101
E celso@vilardi.com.br
W www.vilardi.com.br
Professional qualifications. Brazil, Lawyer; Bachelor of Laws, Pontifícia Universidade Católica de São Paulo; Master's degree in Penal Procedural Law, Pontifícia Universidade Católica de São Paulo; Co-ordinator and Professor in the Postgraduate course in Economic Criminal Law (FGV/Law); Technical Consultant in Comparative Law, Inter-American Board of Banking Qualification (JICAB); Expert Visitor; European Board of Banking Qualification, Paris

Areas of practice. Criminal law.

Languages. Portuguese, English

Publications. Expert in General Theory of Procedure and author of a number of published articles on economic criminal law. Co-author of "Aspectos Atuais do Direito do Mercado Financeiro e de Capitais", Dialética publishing house, 1999.


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