Asset Listing by the Receita Federal: When It Applies

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The Receita Federal (Brazil’s federal tax authority) can list a delinquent taxpayer’s assets before any court case begins. This act, called arrolamento, does not take away ownership or prevent a sale, but it creates duties, and failing to meet them opens the door to much harsher measures.

What administrative asset listing is

Arrolamento (administrative asset listing) is an act of the tax authority that formally lists the assets and rights of a person who owes a federal tax debt. It is provided for in Article 64 of Law 9.532/1997. Its stated purpose is to monitor the debtor’s property: the tax authority learns what the debtor owns, records that information in public registries, and can tell when the debtor’s assets start to drain away.

It is an administrative measure, not a judicial one. It originates within the Receita Federal itself, after the tax credit has been established, and it can come long before a tax enforcement action is filed in court. For that reason, taxpayers often receive the listing notice without ever having been served in any lawsuit, which tends to cause alarm out of proportion to the measure.

It helps to separate three stages that are easily confused. Establishing the credit, through an assessment, defines what is being collected. Registration as dívida ativa (registered tax debt) moves collection to the Procuradoria da Fazenda Nacional (the National Treasury Attorney’s Office) and makes enforcement possible. The arrolamento, for its part, cuts across these stages as a tool for monitoring assets, not as a way of collecting.

The two requirements that trigger the listing

The caput of Article 64 of Law 9.532/1997 sets the first criterion, which is proportional: the tax authority will carry out the listing whenever the tax credits for which the debtor is responsible exceed thirty percent of the debtor’s known assets. It is not enough for the debt to be large in absolute terms; it must be large relative to what the person owns.

The second criterion is a minimum amount and appears in § 7 of the same article. The original 1997 text set the total credits at more than five hundred thousand reais. That threshold was raised to R$ 2.000.000,00 by Decree 7.573/2011, which expressly relied on the authority given to the Executive Branch by § 10 of Article 64, added by Article 32 of Law 11.941/2009.

The two filters work together. A debt of three million reais against someone with declared assets of fifty million does not reach the thirty percent ratio. A debt of two and a half million against someone who declares assets of four million, however, meets both criteria and authorizes the listing.

How are known assets measured? Paragraph 2 gives a practical answer: absent other indicators, known assets are the value shown on the most recent income tax return filed. Taxpayers who declare assets at historical cost, far below market price, tend to reach the percentage more easily than they expect.

There is also a specific rule for individuals. Under § 1, when a tax credit is formalized against an individual, the listing must also identify the assets and rights in the spouse’s name, as long as they are not subject to a clause of non-communicability (a clause barring the asset from becoming shared marital property). The measure therefore reaches the couple’s shared property.

What the listing is not

This is the biggest source of practical confusion. An arrolamento is not a seizure. A seizure (penhora) is an act of judicial attachment carried out within a tax enforcement action governed by Law 6.830/1980. It singles out specific assets to answer for the debt and places them under the court’s control, with appraisal, custody and possible forced sale. None of that happens in an arrolamento.

Nor is an arrolamento an order making assets unavailable. What makes assets unavailable is the medida cautelar fiscal (precautionary tax measure), governed by Law 8.397/1992, which requires a petition to the courts and a judicial decision. An arrolamento, by contrast, does not freeze assets, does not transfer possession, does not prevent a sale, and does not create a lien that would make a transaction unworkable.

A listed asset still belongs to the taxpayer and can still be sold. What the listing creates is a duty to report.

The distinction has concrete consequences. A listed property can be financed, pledged as collateral, donated or sold. A listed vehicle can be driven and transferred. A company with listed assets keeps operating. None of these transactions requires the tax authority’s prior approval, because the law requires notice, not authorization.

The duty to report a transaction involving a listed asset

Paragraph 3 of Article 64 sets out the core obligation. Starting on the date the listing is served, by delivery of a copy of the listing notice, the owner of the listed assets and rights must report any transfer, sale or encumbrance to the tax office that has jurisdiction over the debtor’s tax domicile.

Three verbs, then, trigger the duty: transferring, selling and encumbering. A sale is the obvious case, but a mortgage, a fiduciary transfer as collateral, a donation, an exchange and the contribution of the asset to another company’s capital also qualify. The starting point is service of the notice, not the internal drafting of the listing.

Failing to follow this formality is costly. Paragraph 4 provides that any sale, encumbrance or transfer, on any basis, of the listed assets and rights without the required notice authorizes a petition for a medida cautelar fiscal against the debtor. In other words, silence turns a merely informational measure into a court request to make assets unavailable.

That is why the precautionary tax measure statute lists, among the situations that justify such a petition, both the existence of debts that together exceed thirty percent of known assets and the sale of assets without proper notice to the competent tax authority. The arrolamento serves as the informational groundwork for this escalation.

Annotation of the listing in public registries

The listing gains effect against third parties through registry publicity. Paragraph 5 requires the notice to be recorded, without payment of fees or registry costs, in the competent real estate registry for real property; in the agencies or entities where movable property or rights are registered or controlled by law; and in the Registry of Deeds and Documents (Cartório de Títulos e Documentos) of the debtor’s tax domicile for all other assets and rights.

The fact that registration is free deserves mention, because it spares the tax authority any outlay. For the taxpayer, the effect is that the property’s registry record (matrícula) will carry the annotation, visible to anyone who requests a certificate. Buyers, banks and insurers see the notation and usually ask for explanations before closing a deal.

There is one more effect, set out in § 6: tax compliance certificates must include information about the existence of a listing. Even a taxpayer who obtains a “positive with the effect of negative” certificate because the debt is suspended may find the listing mentioned in the document, which means being ready to explain the situation to whoever reads it.

How to request cancellation

The law directly addresses the situations tied to extinguishing the debt. Under § 8, if the tax credit that gave rise to the listing is paid before it is sent for registration as dívida ativa, the competent authority notifies the real estate registry, notary office, or registration and control agency where the notice was recorded, so that the effects of the listing are annulled.

If the debt was already registered, § 9 applies: once the credit is paid or secured under Law 6.830/1980, notification is the responsibility of the competent authority of the Procuradoria da Fazenda Nacional. At that stage, payment and suitable security produce the same practical result as far as removing the annotations.

Outside these situations, the route is an administrative request addressed to the Receita Federal office that issued the notice, asking for review or cancellation. The most common grounds are objective and verifiable: the total credits do not reach the legal minimum amount; the debt does not exceed thirty percent of known assets; the assets were undervalued through the use of historical cost; or the credit has been extinguished or is suspended.

Errors in identifying assets are also challenged administratively, such as the listing of an asset that belongs to a third party, an asset belonging to the spouse that is subject to a non-communicability clause, or an asset already protected by a recognized exemption from seizure. If the request is denied, or if there is unjustified delay, the remaining route is the courts, through an action to annul the listing or through a mandado de segurança (a writ of mandamus) when the illegality can be shown from the documents alone.

Documentation matters more than rhetoric. Updated appraisals of the assets, registry records, proof of payment, a statement showing the relationship between debt and assets, and proof of any security provided tend to resolve the request at the administrative level, which is faster and less costly.

Common mistakes by those who receive the notice

The first mistake is treating the notice as an imminent seizure and freezing business dealings out of unfounded fear. The second is the opposite and far more serious: selling the listed asset without notifying the tax authority, which turns a registry nuisance into a petition for a precautionary tax measure. The right course lies between the two extremes: operate normally and report every transaction.

Another recurring mistake is failing to check the numbers in the notice. The value assigned to known assets generally comes from the most recent return filed, and outdated returns skew the calculation against the taxpayer. Checking the basis for the percentage is the first step for anyone who wants to challenge the measure.

• Check whether the total credits exceed the legal minimum amount and whether they exceed thirty percent of known assets.
• Keep proof of service of the notice, which sets the starting point of the duty to report.
• Report in writing, and obtain a filing receipt, for every sale, donation, exchange or collateral arrangement involving a listed asset.
• Check the registry records and databases to identify where the annotation was entered.
• Request cancellation as soon as the debt is paid, secured or suspended.

Frequently Asked Questions

Does the listing prevent the sale of a property?

No. The law does not require the tax authority’s authorization to sell a listed asset, only notice of the transaction to the Receita Federal office of the taxpayer’s tax domicile. A sale made with proper notice is fully valid. The annotation on the registry record (matrícula), however, appears on certificates and tends to require an explanation to the buyer and to any financial institution financing the transaction.

What is the difference between an arrolamento and a precautionary tax measure?

The arrolamento is administrative, requires no court decision, and has an informational effect, with the notice recorded and mentioned in tax compliance certificates. The precautionary tax measure (medida cautelar fiscal) requires a petition to the courts, rests on Law 8.397/1992, and makes assets unavailable. Selling a listed asset without notifying the tax authority is precisely one of the acts that authorize a petition for the precautionary measure, so the second measure can arise from a failure to comply with the first.

When does the Receita Federal have to remove the annotation?

If the debt is paid before it is registered as dívida ativa, the Receita Federal authority is responsible for sending the notice that annuls the effects of the listing. After registration, with payment or suitable security, the notice comes from the Procuradoria da Fazenda Nacional. In other situations, such as when the minimum amount or the asset ratio is no longer met, the taxpayer must request cancellation, administratively and, if necessary, in court.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.