El agotamiento de las medidas internas de fiscalización como límite al intercambio de información tributaria por solicitud entre Colombia y Brasil

Abstract

Exchange of information on request (EOIR) constitutes a fundamental instrument of international cooperation in addressing cross-border transactions and structures. Nevertheless, its use is subject to certain limitations intended to prevent the requested state from assuming investigative tasks that can reasonably be carried out by the requesting state through its own domestic powers. This article examines the scope of the exhaustion of domestic tax audit measures as a limitation on EOIR between Colombia and Brazil. The study adopts a qualitative, legal-doctrinal, documentary and comparative approach, based on an analysis of the Convention on Mutual Administrative Assistance in Tax Matters, the domestic legislation of Colombia and Brazil, the procedures applied by the DIAN and the Brazilian Federal Revenue Service, as well as reports issued by the Global Forum. The findings show that exhaustion does not require the mechanical use of all tax audit powers available to the requesting state; rather, it requires the use of measures that are legally available, materially appropriate and reasonably capable of obtaining the requested information, unless their application would entail disproportionate difficulties. The analysis further shows that foreseeable relevance and exhaustion operate as independent controls, since foreseeable relevance determines what information may legitimately be requested, whereas exhaustion establishes when it is justified to resort to international cooperation. Finally, the study concludes that failure to exhaust domestic measures initially affects the admissibility of the request, but does not, in itself, render the information obtained unlawful evidence or automatically result in the annulment of the tax assessment. Based on these findings, the article proposes a three-level control model and develops the concepts of substantive exhaustion and auditable exhaustion.