The Federal Supreme Court (STF) upheld, by majority, the constitutionality of a state law that allows the disclosure of habitual ICMS debtors. The judgment concerned Law No. 13,711/2011 of Rio Grande do Sul, which created the Special Tax Monitoring Regime (Regime Especial de Fiscalização – REF) for taxpayers repeatedly defaulting on the payment of the tax.
The rule authorizes the State Treasury to adopt various measures, including:
- the publication of the names of habitual debtors on the Treasury’s website;
- inclusion of information on tax documents issued by these taxpayers indicating that they are subject to REF;
- notification to their business partners about their tax status;
- requirement of guarantees for certain transactions; and
- suspension of special tax regimes.
Background of the case
The law and its regulatory decree (Decree No. 48,494/2011) were challenged in a Direct Action of Unconstitutionality (ADI 4854) filed by the National Confederation of Industry (CNI). The entity argued that the measures provided by the rule would constitute political sanctions, prohibited by the Court’s own precedents, and would restrict the freedom to engage in business.
The reporting Justice, Nunes Marques, rejected the argument. He held that the law does not establish coercive sanctions but rather regulatory mechanisms intended to preserve the integrity of market competition and to distinguish habitual debtors—those who use nonpayment as a business model—from taxpayers who occasionally fail to meet their obligations due to temporary financial hardship.
The Justice stressed that the measures apply only to a very small portion of taxpayers—approximately 0.5% of all taxpayers in Rio Grande do Sul—and that the State has the constitutional duty to act against practices that distort fair competition.
Key arguments of the decision
According to the STF, the disclosure of habitual debtors and the implementation of special monitoring measures do not violate the principles of free enterprise or freedom of work. On the contrary, the Court emphasized that persistent tax delinquency creates an unfair competitive advantage for those who systematically evade taxes, harming compliant taxpayers and the regular functioning of the market.
The Justices further noted that the rule does not violate the principle of fiscal confidentiality, since the information disclosed relates only to the status of habitual debtor and not to private or sensitive data protected by tax secrecy.
In addition, the Court clarified that the rule is not aimed at compelling payment of the tax, but at ensuring transparency and equality in competition. The measures, therefore, cannot be considered political sanctions, as they do not impede or restrict the exercise of lawful economic activity by regular taxpayers.
Impacts and precedential value
Although the decision directly concerns the law of Rio Grande do Sul, the ruling sets an important precedent for other states that maintain or plan to implement similar regimes.
The judgment may also influence Complementary Bill No. 125/2022, currently pending before Congress, which seeks to establish national parameters for identifying habitual debtors, including thresholds, recurrence criteria, and procedural safeguards.
In reaffirming the State’s power to adopt transparency and control mechanisms aimed at combating systematic tax evasion, the STF recognized the legitimacy of differentiated treatment for habitual debtors, provided that constitutional principles and due process guarantees are respected.