The Blind Spot of the New Taxpayer Protection Code

International Exchange of Information and the Right to Participation in the Era of Global Transparency

Abstract

The enactment of Supplementary Law No. 225/2026 established the Brazilian Taxpayer Protection Code, creating a comprehensive domestic framework of procedural guarantees and cooperative compliance. However, the Code suffers from a critical normative “blind spot”: it is entirely silent on the protection of taxpayers in cross-border Exchange of Information (EOI) and Automatic Exchange of Information (AEOI) procedures, generating an untenable asymmetry between domestic protection and transboundary vulnerability. The article advances four interconnected arguments. First, it critiques the OECD’s utilitarian approach that systematically relegates the taxpayer to the role of the “forgotten party” in international cooperation frameworks. Second, it demonstrates that the legislative silence must be remedied through the constitutional due process clause (art. 5, LV, Brazilian Constitution) and art. 199 of the National Tax Code. Third, drawing on CJEU jurisprudence – particularly Berlioz (C-682/15) and État luxembourgeois (C-245/19, C-246/19) – the article proposes the adoption of the foreseeable relevance standard as a mandatory filter against fishing expeditions. Fourth, the article advocates for the joint and several civil liability of the Brazilian State for trade secret leaks perpetrated by foreign recipient jurisdictions, grounded in the concept of deferred protection.