Author: Everardo Maciel *

Source: Noblat Blog, 13/06/2010

Until the early nineties, the federal tax authorities, in inspection procedures, had access to information protected by bank secrecy. At one point, he intended to collect data on credit cards. The administrators of these cards were willing to meet the demand. The tax authorities, however, exceeded the requirements related to the periodicity in the delivery of information.

The abusive attitude triggered a reaction from everyone who held responsibility for the protection of bank secrecy, resulting in a judicial dispute, the outcome of which came to the detriment of the tax authorities, as the understanding that access to that information was subject to prior judicial authorization was sanctioned. 

The return to the previous situation involved a long journey, which started with the institution of the CPMF. It was, precisely, the information collected from this contribution that showed clamorous cases of tax evasion, whose confrontation became practically impossible, because the use of that data was not allowed to constitute credits from other taxes.

The restrictions that hindered the tax authorities' access to information protected by bank secrecy were removed with the sanction, in January 2001, of the following laws and decree: Law nº 10.471 that eliminated the prohibition for the tax authorities to use CPMF data to constitute credit claims. other taxes; Complementary Law No. 105 and Decree No. 3.724, which provided the appropriate legal basis for access by the tax authorities to information protected by bank secrecy, either incidentally or systematically, setting extremely strict criteria for requesting and keeping information, and limiting access to the matter strictly fiscal, with respect to the taxpayer's privacy.

Complementary Law No. 105 and Decree No. 3.724 reach, on a permanent basis, the same purposes that information from the CPMF reached on a provisional basis. Direct Unconstitutionality Actions (ADINs) were filed against these rules, not yet assessed by the STF, whose success is, however, unlikely, not only due to the solid legal foundations that support them, but especially due to the judicious use of the instruments made available tax authorities, with good results in combating tax evasion.

In the tide against the aforementioned good practice, unfortunately, in the last few months, the press has been publishing information that shows leakage of information protected by fiscal secrecy. First, controversial infraction notices were released, released against Banco Santander and Ford, and questions about legitimate compensation made by Petrobras, in the context of unreasonable justifications for administrative changes in the IRS. There is already news of an apparently inconclusive launch, in an extremely controversial matter, against BM & FBovespa, reflecting on the movement of the stock exchange and generating undue gains and losses for investors. Likewise, tax information about a company, whose holder is a candidate for the Vice-Presidency of the Republic, leaked through the press, not to mention the information that would apparently be used to produce criminal dossiers to be used in the election campaign. In all, there is a clear offense to the obligation of secrecy established in art. 198 of the National Tax Code and evidence of crime in view of art. 325 of the Penal Code.

Judge John Marshall, in a famous sentence, said that "the power to tax cannot reach the immense power to destroy". The Public Prosecutor's Office and the IRS itself cannot remain indifferent to facts that compromise the democratic rule of law, and they must rigorously ascertain those responsible for the practice of these fiscal villains.

* Everardo Maciel is a former Federal Revenue Secretary