The Brazilian Federal Revenue Office (“RFB”) recently issued Portaria n. 393/24[1], which deals with the new rules regarding tax representation for criminal purposes. From now on, the RFB will be able to communicate to the Federal Prosecutor’s Office (“MPF”) when the facts portrayed in the tax procedure are configured as: i) crime of bond, papers and public documents fraud (articles 293, 294 and 297 of Brazilian Criminal Code); ii) crime of money laundering or assets concealing; iii) crime against the Federal Public Administration, to the detriment of the National Treasury and against foreign public administration.

There are several points that deserve to be highlighted in this normative act. In this brief space, however, we will only cover section I.

Before this ordinance was issued, representation in tax crimes provided for in article 1, items I to IV, of Law no. 8,137/90 was applicable after the definitive constitution of the tax credit. This guidance respected Binding Precedent no. 24/STF (“BP”), which provides that, in these cases, there is only a crime after the definitive constitution of the tax. As a result, only after this phase will criminal prosecution for such crimes occur.

With the entry into force of this ordinance, if the federal auditor finds that the facts discovered in the tax procedure also constitute a crime of falsifying public documents, he must make the tax representation for criminal purposes. Now, considering that falsehood is a requirement for most tax crimes, in our opinion, the command contained in the ordinance constitutes a circumvention of BP n. 24, as it will allow a preliminary criminal investigation to be carried out, which would only be initiated after a final and unappealable decision at the administrative level.

It is true that the investigation will not focus on tax crime, after all, the tax has not yet been considered definitively due. However, in practice, it is difficult to separate falsehood from the tax crime. The police authority’s inquiry into the fake has direct repercussions on the investigation of the tax crime. It’s here that we see the law deception.

For these reasons, we understand that the normative act must be reviewed at this point, so that it is consistent with the current legal order. For information, come have a coffee with us!

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[1] http://normas.receita.fazenda.gov.br/sijut2consulta/link.action?idAto=135692