A joint ordinance issued by the Brazilian Federal Revenue Service (RFB) and the Office of the Attorney General of the National Treasury (PGFN) has been published to regulate the law that introduced the concept of the “habitual tax debtor” into the Brazilian legal framework.
The regulation establishes objective parameters for identifying, defending, and penalizing taxpayers who systematically and strategically fail to pay taxes.
The measure aims to distinguish between taxpayers facing financial distress and those who use tax delinquency as a business model, often associated with fraudulent practices.
Criteria for Classification as a Habitual Tax Debtor
The ordinance establishes cumulative requirements for classification:
- Minimum debt of R$ 15 million owed to the Federal Government;
- Debt exceeding 100% of the taxpayer’s declared assets;
- Repeated non-compliance, defined as:
- default for 4 consecutive periods, or
- default for 6 non-consecutive periods within 12 months.
The procedure is initiated through formal notification, ensuring the taxpayer’s right to due process and full defense.
Administrative Procedure and Deadlines
Following notification, the taxpayer is granted:
- 30 days to:
- settle the debt;
- enroll in an installment plan; or
- submit an administrative defense;
- 10 days to file an administrative appeal in the event of an adverse decision.
It is important to note that, in cases deemed serious, the filing of an appeal may not suspend the effects of the penalties, significantly increasing regulatory risk.
Situations Excluded from Classification
The regulation expressly excludes the following situations from classification as a habitual debtor:
- debts with suspended enforceability (judicial or administrative);
- debts duly settled through installment plans and kept current;
- cases involving proven financial losses or extraordinary events, provided there is no indication of fraud.
This delimitation reinforces the legislator’s intention to protect bona fide taxpayers.
Applicable Sanctions
Once classified as a habitual tax debtor, the taxpayer may be subject to severe restrictions, including:
- loss of tax benefits and incentives;
- prohibition from participating in public tenders;
- restriction from contracting with the government;
- limitations on access to judicial reorganization proceedings;
- declaration of CNPJ (tax registration) irregularity;
- inclusion in restrictive registries, such as Cadin;
- publication on a public list of debtors.
In certain cases, existing public contracts may be maintained only when related to essential services or critical infrastructure.
Tax Integration and Strengthening of Enforcement
The ordinance also introduces mechanisms for greater coordination among tax authorities, including:
- data sharing among federal, state, and municipal tax authorities;
- public disclosure of classified taxpayers;
- strengthening of tax intelligence systems.
Analysis and Practical Impacts
The regulation of the habitual tax debtor concept represents a significant shift in the strategy to combat structured tax evasion. By establishing objective criteria and strict sanctions, the measure is expected to:
- increase regulatory risk for abusive tax structures;
- promote a level playing field in sectors historically affected by strategic default (such as the fuel industry);
- reinforce the need for robust tax compliance frameworks within companies.
On the other hand, its practical application will require careful attention to:
- compliance with due process guarantees;
- proper distinction between occasional default and fraudulent conduct;
- the proportionality of sanctions, particularly in borderline cases.
Conclusion
The regulation consolidates a new enforcement mechanism aimed at combating qualified tax delinquency, with the potential to significantly impact the business environment.
Companies should review their tax practices and operational structures to mitigate the risk of classification, particularly in scenarios involving high levels of tax indebtedness.
From a legal perspective, the matter is likely to generate relevant debates, especially regarding the scope of sanctions and the constitutional limits of tax enforcement authority.