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In the first article of this series, we took the amendments introduced by Complementary Law No. 236\/2026 as our starting point for a broader question: were we simply looking at new rules, or at the beginning of a change in the relationship between the tax authorities and taxpayers?<\/strong><\/p>\n To test this hypothesis, our first area of analysis is the tax penalty regime.<\/p>\n The imposition of tax penalties has always been subject to the constitutional limits on the State\u2019s powers to tax and to impose sanctions. Over the years, Brazil\u2019s Federal Supreme Court (STF<\/strong>) has developed important criteria for reviewing excessive or confiscatory penalties, including those imposed for failure to comply with ancillary tax obligations.<\/p>\n Complementary Law No. 236\/2026 introduces an important development, however. Reasonableness and proportionality are now expressly incorporated into the National Tax Code itself as criteria for imposing tax penalties.<\/strong><\/p>\n The amendment seems straightforward. Its consequences may be less so.<\/p>\n The new Article 113-A requires penalties for failure to comply with principal and ancillary tax obligations to be reasonable and proportionate to the infringement committed by the person liable.<\/p>\n The law goes beyond stating a principle. For penalties within the scope of this provision, it sets maximum limits calculated by reference to the tax assessed or the tax credit whose verification has been affected:<\/p>\n Article 113-A itself excludes from this regime standalone penalties that are not linked to the amount of a tax credit or tax. Accordingly, Complementary Law No. 236\/2026 does not simply provide that every tax penalty will be at least 75%<\/strong>.<\/p>\n The nature of the penalty, its calculation basis and the circumstances of the infringement remain essential to determining the applicable legal regime.<\/p>\n For businesses, therefore, comparing the percentage stated in the tax assessment notice with the new limits is not enough. They need to understand which penalty has been imposed, for what conduct and on what basis<\/strong>.<\/p>\n Perhaps the most interesting innovation in the reform lies beyond the percentages. The new regime also changes how taxpayer conduct must be taken into account when imposing a penalty.<\/p>\n Complementary Law No. 236\/2026 introduced penalty reduction mechanisms into Article 142 of the CTN and laid down rules on aggravating and mitigating circumstances, while also requiring the infringing conduct of each person liable to be individually identified. The reform also attaches specific consequences to participation in compliance programmes.<\/p>\n This is where the legislative amendment takes on greater significance.<\/p>\n Proportionality involves asking not only how much may be charged, but also whether the penalty imposed reflects the gravity of the conduct actually engaged in.<\/strong><\/p>\n The distinction matters. A penalty system based solely on the objective finding of an infringement tends to focus on the question: What penalty does the law prescribe for this failure to comply?<\/em><\/p>\n A system that expressly incorporates proportionality, aggravating and mitigating circumstances, and the individual assessment of conduct must also answer: Is this penalty appropriate to the specific circumstances of this infringement and this taxpayer?<\/strong><\/p>\n Another significant development is the greater weight given to taxpayer conduct in the legislation.<\/p>\n For certain purposes, Complementary Law No. 236\/2026 does not treat a taxpayer seeking to bring their tax affairs into order in the same way as one participating in compliance programmes, or one whose conduct involves fraud, tax evasion, collusion or repeat infringements. The new penalty regime provides for reductions and differentiated treatment linked both to the timing of regularisation and to the circumstances of the conduct.<\/p>\n This reinforces one of the hypotheses raised in the first article of this series: tax compliance is beginning to have legal consequences that extend beyond the mere absence of an infringement.<\/strong><\/p>\n For businesses, this change may be particularly relevant.<\/p>\n The decision whether to pay, pay in instalments or challenge a tax assessment is no longer solely a matter of assessing its legal validity. The timing of regularisation, the taxpayer\u2019s compliance record, the legal classification of the conduct, participation in compliance programmes and the cost of litigation may all directly affect the financial outcome of that decision.<\/p>\n In other words, tax liability management and compliance strategy become even more closely connected<\/strong>.<\/p>\n This raises one of the most significant questions arising from the CTN reform.<\/p>\n Long before Complementary Law No. 236\/2026, Article 106, II, \u2018c\u2019, of the Code already provided that, where an act has not yet been finally adjudicated upon, a law applies retrospectively if it prescribes a less severe penalty than the legislation in force when the act was committed.<\/p>\n Reading that rule alongside the new penalty regime immediately raises an important question: to what extent do the new, more favourable criteria apply to penalties imposed before Complementary Law No. 236\/2026 in cases that have not yet been finally decided?<\/strong><\/p>\n The answer calls for caution.<\/p>\n Although the CTN provides for the retrospective application of legislation prescribing a less severe penalty where the act has not yet been finally adjudicated upon, applying the new criteria requires consideration of, among other factors:<\/p>\n For businesses challenging tax assessment notices, however, the issue deserves attention. A penalty correctly calculated when the assessment was issued may be open to reassessment in light of subsequent, more favourable legislation.<\/strong><\/p>\n A further qualification is needed.<\/p>\n The incorporation of proportionality into the CTN does not mark the beginning of taxpayer protection against excessive penalties. The Constitution already limits the power to impose tax sanctions, and the STF has, over time, developed criteria for reviewing tax penalties.<\/p>\n A particularly relevant example is Theme 487.<\/p>\n In its ruling on standalone penalties for failure to comply with ancillary tax obligations, the STF set a ceiling of 60% of the associated tax or tax credit<\/strong>, allowing up to 100% where aggravating circumstances are present<\/strong>. Where there is no associated tax or tax credit, but the penalty is linked to the value of a transaction or supply, the penalty may not exceed 20% of that value<\/strong>, rising to 30% in aggravated cases<\/strong>.<\/p>\n The Court also required observance of the principle of absorption and allowed qualitative criteria such as suitability, necessity, fair measure, insignificance and ne bis in idem<\/em> to be considered in the individual assessment of aggravating and mitigating circumstances. The ruling in Theme 487 became final on 24 April 2026, a few months before the publication of Complementary Law No. 236\/2026.<\/p>\n In some situations, therefore, the new Article 113-A does not provide the whole answer: constitutional limits and binding STF precedents may impose even stricter criteria<\/strong>.<\/p>\n This reinforces an important conclusion: tax penalties following the reform cannot be analysed solely by looking at a percentage in isolation.<\/p>\n The practical implications may be greater than they appear.<\/p>\n Businesses with substantial tax disputes should, at a minimum, consider the following questions:<\/p>\n The answer will differ from case to case.<\/p>\n Yet this is precisely what makes the reform significant: a penalty can no longer be analysed solely as the mathematical consequence of a tax assessment; it now requires a broader assessment of proportionality, conduct, procedural stage and strategy.<\/strong><\/p>\n In one sense, no. Proportionality was already part of the constitutional framework governing taxation and had long provided a basis for judicial review of tax sanctions. The STF\u2019s case law confirms that tax penalties are subject to constitutional limits.<\/p>\n In another sense, however, the answer appears to be yes. The innovation introduced by Complementary Law No. 236\/2026 does not lie in requiring tax penalties to be proportionate. It lies in expressly incorporating that requirement into the general rules of the tax system itself and linking it to concrete criteria for imposing penalties.<\/strong><\/p>\n This distinction may be more important than it appears.<\/p>\n Whereas proportionality often served under the previous regime as a means of reviewing a penalty already prescribed, the new CTN provides a basis for it also to inform the determination and imposition of the penalty itself.<\/p>\n It remains to be seen how tax administrations and administrative adjudicatory bodies will put this statutory requirement into practice. That may be the true measure of the change: not only how much the tax authorities may impose in penalties, but how they must justify the sanction they choose to apply.<\/strong><\/p>\n The requirement for rational administrative action does not, however, end with penalties. It also extends to disputes in which the legal position has already been definitively settled by the higher courts.<\/p>\n In the next article of this series, we will examine another test of this new relationship between the tax authorities and taxpayers: if the STF and the Superior Court of Justice (STJ) have already issued a binding ruling on an issue, why should taxpayers continue to bear the cost of disputing it with the tax authorities?<\/strong><\/p>\n <\/p>","protected":false},"excerpt":{"rendered":" In the first article of this series, we took the amendments introduced by […]<\/p>\n","protected":false},"author":1,"featured_media":472,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[7],"tags":[],"class_list":["post-471","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-artigos"],"acf":[],"yoast_head":"\nFrom constitutional limits to express provision in the CTN<\/strong><\/h3>\n
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Proportionality means more than setting a ceiling<\/strong><\/h3>\n
Taxpayer conduct acquires greater legal significance<\/strong><\/h3>\n
What about tax assessments predating Complementary Law No. 236\/2026?<\/strong><\/h3>\n
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Complementary Law No. 236\/2026 does not replace the limits developed by the STF<\/strong><\/h3>\n
What changes for businesses?<\/strong><\/h3>\n
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Has proportionality finally reached the CTN?<\/strong><\/h3>\n