For the vast majority of tax lawyers, confiscation is a recurring and poorly defined issue, especially at a time when the much-desired tax reform is being discussed.

Although the Federal Constitution, in its article 150, provides that "“limitations on the power to tax“"The fact is that many rough edges can be seen, given the breadth of terminology adopted by the legal instrument and the lack of consensus in current doctrine.".

From what can be seen in the history of rulings, many contain the understanding of confiscation. However, very few are based solely on the fundamental principle of confiscation. In fact, other principles, such as legality and non-retroactivity, take center stage, with confiscation being a mere "supporting actor".

A great, clear, and recent example of this was the judgment of RE 1258934, decided by the STF, regarding the 500% increase in the SISCOMEX fee.

In their final decision, although the proposed increase was clearly confiscatory, the ministers failed to specifically mention confiscation, stating only that it was "“The adjustment applied to the rate values is excessive.“Furthermore, the unanimous understanding among the ministers was that the increase is unconstitutional because it was done through an administrative order.

For these and other reasons, the necessary involvement of a qualified legal team to analyze your specific case becomes clear.

Article written by Fabricio Norat, Lawyer, graduated in Law in Graduated in 2014 from FMU/SP Faculdade Metropolitanas Unidas, specializing in Customs, Tax, and Business Law.. OAB/SP No. 431.023