The Federal Supreme Court (STF) has ruled that Articles 43 and 44 of Law No. 14,973/2024 are constitutional. These provisions require companies benefiting from tax incentives to electronically submit information to the Federal Revenue Service (RFB) through the DIRBI (Declaration of Tax Incentives, Exemptions, Benefits, and Immunities).
The National Confederation of Industry (CNI) filed a Direct Action of Unconstitutionality (ADI) challenging Articles 43 and 44 of Law No. 14,973/2024, which impose on legal entities that benefit from tax incentives the obligation to electronically report to the RFB the tax incentives, exemptions, benefits, or immunities they receive, via the DIRBI – Declaration of Tax Incentives, Exemptions, Benefits, and Immunities.
The CNI argued that these provisions violated the principles of tax simplicity, reasonableness, proportionality, free enterprise, and competition, and also constituted an obstacle to the right of petition and access to justice, given the penalties and fiscal compliance requirements imposed for maintaining eligibility for the incentives.
Decision of the Court
Justice Dias Toffoli, the reporting justice, voted to deny the claim, and his opinion was unanimously followed by the Plenary.
According to the rapporteur, there is no violation of the constitutional principles invoked, because:
- the law itself provides that the required information be submitted in a simplified electronic format, via the RFB’s e-CAC system, without imposing a disproportionate burden on companies;
- the purpose of the rule is to strengthen fiscal transparency, improve oversight of public policies related to tax expenditures, and increase efficiency in the administration and supervision of tax benefits.
The justice also dismissed the argument that the requirement of tax regularity constitutes a “political sanction”, noting that Article 43, §2, merely systematizes conditions already existing in federal law for the granting and maintenance of tax incentives, without preventing taxpayers from challenging undue tax assessments.
Penalties and Proportionality
With respect to the fines established in Article 44, the STF held that the percentages—limited to 30% of the value of the tax benefit—are proportional and reasonable, serving a legitimate deterrent function consistent with the Constitution.
The rapporteur further noted that micro and small enterprises are not automatically exempt from these ancillary obligations, since Complementary Law No. 123/2006 provides exceptions requiring them to comply with the same reporting duties applicable to other legal entities.