By Matheus André Ribeiro and Laura Rendak Dalberto
The Brazilian Supreme Federal Court (Supremo Tribunal Federal – STF) concluded yesterday, on December 17, 2025, the judgment of General Repercussion Theme 487, establishing definitive parameters for the application of standalone fines arising from noncompliance with ancillary tax obligations.
According to the holding, a standalone fine may not exceed 60% of the amount of the tax or the related tax credit, with an increase to up to 100% permitted when aggravating circumstances are present. In cases where there is no associated tax or tax credit, the penalty is capped at 20% of the value of the transaction, which may reach 30% in aggravated situations. The Supreme Court also clarified that these limits do not apply to violations of a predominantly administrative nature, such as certain customs fines.
The decision was reached by a majority, with the opinion authored by Justice Dias Toffoli prevailing. He proposed a conciliatory solution in light of the three different positions that had emerged in the Plenary at the close of the voting session on November 10, 2025.
In addition to the percentage limits, the STF emphasized that the imposition of penalties must observe substantive criteria, such as the principle of absorption (consunção), in order to avoid the application of multiple fines for the same act, as well as an individualized analysis of the specific case. In this context, the tax authorities must consider qualitative parameters such as appropriateness, necessity, proportionality, fair measure, insignificance, and the prohibition of double punishment (bis in idem).
As for the effects of the decision, temporal modulation was established, providing that the holding applies as of the publication of the minutes of the judgment on the merits (December 17, 2025), without prejudice to (i) judicial and administrative proceedings pending as of that date and (ii) taxable events that occurred prior to that date for which the fine has not yet been paid. The Court held that such modulation reinforces legal certainty.
The outcome was proclaimed based on the convergence of the opinions delivered by Justices Dias Toffoli and Cristiano Zanin in the judgment of Extraordinary Appeal (RE) No. 640,452. The prevailing holding was supported by Justices Cármen Lúcia, Alexandre de Moraes, Flávio Dino, Luiz Fux, Nunes Marques, and Edson Fachin. Justices Luís Roberto Barroso, Gilmar Mendes, and André Mendonça dissented, as they advocated for different limits on the penalties.
With this definition, the STF brings to an end a controversy that for years had generated uncertainty and divergent interpretations in the courts. From now on, judicial actions and tax audits must comply with the holding set forth, allowing for greater uniformity in decisions nationwide. The full decision is expected to be published in the coming weeks.
The tax team at Marins Bertoldi Advogados continues to closely monitor the most recent decisions and developments in the legal landscape and remains available to provide specialized support to companies seeking guidance on this matter.
