Intercambio de información tributaria y derechos del contribuyente. Habeas data e intimidad frente al deber de colaboración fiscal en Colombia y Brasil

Abstract

The automatic exchange of tax information (AEOI) has become the main tool the international community uses to confront cross-border tax evasion and avoidance, promoted by the Organisation for Economic Co-operation and Development (OECD) through the Common Reporting Standard (CRS) and channeled through the Convention on Mutual Administrative Assistance in Tax Matters. This article argues that, although they reach functionally convergent outcomes —administrative access to taxpayers' financial information without a prior judicial order—, neither the Colombian model, grounded in the express textual authorization of Article 15 of the Constitution, nor the Brazilian model, built through case law on Articles 5 and 6 of Complementary Law 105/2001, satisfactorily resolves the tension between the taxpayer's duty of fiscal cooperation and the rights to privacy, secrecy of data, and habeas data. The thesis rests on a nine-category comparative grid, applied in the same order to Colombia and Brazil, and on a discussion of specialized doctrine on tax audit powers and taxpayer-rights protection. The analysis shows that both legal systems concentrate their guarantees at the moment access is authorized and neglect the guarantees that should apply after the data has been transmitted, so that taxpayers effectively lose control over their financial information once it crosses the border. The article concludes that the decisive constitutional limit on automatic exchange does not depend on how access is authorized —textually or through case law— but on whether procedural safeguards exist after transmission, a deficit shared by Colombia and Brazil despite their different constitutional paths.