On 12 October 2026, Brazil's leading legal journal ConJur published an analysis of the tax liability of the attorney-in-fact appointed by a non-resident. The timing matters: since January 2026, Law 15,270/2025 requires a 10% withholding on profits and dividends remitted abroad — and the person who withholds, inside Brazil, is the person who represents you.
Hook
On 12 October 2026, Brazil's leading legal journal ConJur published an analysis of the tax liability of the attorney-in-fact appointed by a non-resident. The timing matters: since January 2026, Law 15,270/2025 requires a 10% withholding on profits and dividends remitted abroad — and the person who withholds, inside Brazil, is the person who represents you.
Background a reader outside Brazil needs first
Three features of the Brazilian system make this problem invisible until it arrives. First, Brazil separates tax residence from nationality: a Brazilian who moves abroad files a formal declaração de saída definitiva (definitive departure declaration) with the Federal Revenue Service, and from that point is taxed only on Brazilian-source income. Second, Brazilian law has required, since a 1943 statute still in force, that a departing taxpayer appoint a representative in the country. Third — and this is where the damage occurs — Brazilian notarial practice favors broad, open-ended powers of attorney. One instrument, drafted in sweeping terms, typically covers everything: collect rent, sign deeds, operate bank accounts, approve corporate distributions. That single document is what converts a contact point into a tax responsible party.
What happened
The article Responsabilidade tributária do procurador do não residente: hipóteses e limites, by Felipe Kirsch and Stéphano Sant'Ana, published in ConJur on 12 October 2026, maps the regime applicable to the representative appointed by a former Brazilian tax resident.
The framework is old and seldom read. Article 195, sole paragraph, of Decree-Law 5,844/1943 governs the appointment of an attorney-in-fact upon departure. Article 100, sole paragraph, item "a", of the same decree-law assigns to the attorney-in-fact the withholding of tax on rent collected on the non-resident's behalf. Article 128 of the National Tax Code (CTN) allows statute to assign liability to a third party connected to the taxable event, and article 121, sole paragraph, II defines the responsible party. On withholding, the relevant provisions are article 35 of Normative Instruction SRF 208/2002, article 79 of Law 8,981/1995, article 26 of Law 10,833/2003 (capital gains of a non-resident), and article 153, § 1, III, of the 2018 Income Tax Regulation.
The newest layer matters most for 2026: article 10, § 4, of Law 9,249/1995, inserted by Law 15,270/2025 (enacted 26 November 2025), subjects profits and dividends paid to beneficiaries resident or domiciled abroad to a 10% withholding income tax, effective from January 2026. Profits earned through calendar year 2025 are outside the withholding if their distribution was approved by 31 December 2025, is enforceable under Brazilian civil or corporate law, and is paid under the original terms of that approval.
On the limits of liability, the article cites CARF administrative rulings 2401-006.138 and 2201-004.451, and Civil Appeal 0013663-92.2012.4.03.6105, 4th Panel of the Federal Regional Court for the 3rd Region, Judge Marli Marques Ferreira, decided 16 February 2022 (published 18 February 2022), which held that the attorney-in-fact of a non-resident lacked standing as a defendant in a tax assessment.
The authors' core thesis: merely naming an attorney-in-fact in the departure declaration does not create tax liability. Liability attaches when the representative performs an act of representation connected to the taxable event — collecting rent, signing a deed, operating the account, withholding the tax. Conversely, having no representative at all may lead the Federal Revenue Service to challenge the claimed non-resident status itself.
The technical reading
Three different documents get collapsed into one, at considerable cost. A civil power of attorney — used to sign a deed or to represent an heir in a Brazilian probate proceeding — is a mandate whose scope is limited by article 661 of the Brazilian Civil Code. A tax representative named to the Federal Revenue Service on departure is a point of contact. A tax responsible party is someone the statute reaches because they are connected to the taxable event. Brazilian practice almost always puts all three in the same person: the brother who stayed, the long-time accountant, the daughter in São Paulo.
The outcome follows mechanically. Where the instrument grants powers to manage real property, collect rent, operate accounts and approve distributions, the holder stops being a contact point and begins performing the very acts on which collection of the tax depends. That is where article 128 of the CTN finds the connection liability requires — not in the departure filing. The 3rd Region court's 2022 precedent rejected liability precisely because that participation in the taxable event was absent.
The 10% dividend withholding changes the scale of the problem from 2026 onward. A Brazilian holding quotas in a Brazilian company and receiving profits abroad previously faced an exemption. There is now tax to withhold on each remittance, and the operation is usually run by an attorney-in-fact. A failed withholding, a remittance made without collection, or a distribution claimed under the transition rule without having been approved by 31 December 2025 — each is a potential assessment, and the attorney-in-fact is the one standing in Brazil to receive it.
The symmetrical mistake is appointing no one. Without a representative, the non-resident has no one to receive service of process, no one to withhold what is owed, and no one to produce evidence that the change of residence actually occurred. The Federal Revenue Service has treated the absence of representation as one indicator that departure was never consummated — which reopens worldwide taxation and undoes the entire calculation behind the move.
The technical answer is not to choose between appointing and not appointing. It is to separate the roles: a specific power of attorney for each act, with express powers and a term; a tax representative distinct from the attorney-in-fact for management acts; and, where a company is involved, a corporate structure in which dividend withholding does not depend on a personal mandate.
Who this affects
- Brazilians living in the United States or elsewhere who own real property, a company or quotas in Brazil
- Non-residents collecting rent from Brazilian real estate
- Non-resident partners in a Brazilian limited liability company that distributes profits
- Anyone who filed a definitive departure declaration and signed a broad power of attorney
- Relatives, accountants and managers who accepted a power of attorney from a family member abroad
- Foreign nationals holding an interest in a Brazilian company through a local representative
What to do, and by when
- Re-read the power of attorney now in force and list the powers actually granted. Powers to collect rent, operate accounts, sign deeds and approve profit distributions are the ones that bring the holder close to the taxable event under article 128 of the CTN.
- Split the functions into separate instruments: one representative for communication with the Federal Revenue Service, and specific powers of attorney — defined scope, defined term — for each act of management or disposition. Selling Brazilian real property requires express powers in public (notarial) form, apostilled under the Hague Apostille Convention where executed abroad.
- Review the profit distribution flow before the next remittance, in light of article 10, § 4, of Law 9,249/1995 as amended by Law 15,270/2025. For profits of fiscal years through 2025, confirm the distribution was in fact approved by 31 December 2025 and recorded in corporate minutes.
- Test the consistency of the departure declaration against reality: address, ties, representation, and where Brazilian-source income goes. Gaps in that set are what support a challenge to non-resident status.
- Where the attorney-in-fact already faces an assessment, examine the lack-of-standing argument in light of Civil Appeal 0013663-92.2012.4.03.6105 (TRF-3) and the CARF precedents, within the applicable period to respond or appeal.
The cost of inaction
A broad power of attorney signed for convenience can place a relative on the receiving end of a Brazilian tax enforcement action for a tax that was never theirs.
Scope note. This content addresses Brazilian law only. Matters governed by foreign law are handled in partnership with lawyers licensed in the relevant jurisdiction.
Editorial record
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Pillar: 6 — Ties to Brazil
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Related service (performed in Brazil): public power of attorney and apostille; appointment of a tax representative; review of corporate structure and dividend flows to non-residents; administrative and judicial defense in withholding-tax assessments
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Editorial tier: Gold
Sources: - Responsabilidade tributária do procurador do não residente: hipóteses e limites — ConJur, 12/10/2026 · - Lei nº 15.270, de 26 de novembro de 2025 — texto publicado, Câmara dos Deputados · - Sancionada a Lei 15.270/2025: tributação de dividendos, ampliação da faixa de isenção e tributação mínima de altas rendas — Mayer Brown, dez/2025 · - Saída fiscal além da forma: animus definitivo e novo alerta da Receita — ConJur, 07/09/2026 · - Comunicação de Saída Definitiva do País — Receita Federal · - Saída Fiscal Definitiva do Brasil: orientações para brasileiros no exterior — Ministério das Relações Exteriores · - Precedente original: TRF-3, 4ª Turma, Apelação Cível 0013663-92.2012.4.03.6105, rel. Des. Fed. Marli Marques Ferreira, j. 16/02/2022, DJEN 18/02/2022
Notice
This content is strictly informational, produced under Provimento No. 205/2021 of the Federal Council of the Brazilian Bar Association (OAB), with no commercial or client-solicitation purpose. The practical guidance is general and does not substitute for analysis of a specific matter. Artificial intelligence assisted in research and drafting, under the review and technical responsibility of the signing attorney, in line with OAB Recommendation No. 001/2024.
Verification record
Sources were checked as of October 16, 2026: ConJur analysis of October 12, 2026 on the tax liability of a non-resident's attorney-in-fact; Law No. 15,270/2025 (10% withholding on dividends remitted abroad since January 2026); CARF rulings 2401-006.138 and 2201-004.451; and TRF-3 Civil Appeal 0013663-92.2012.4.03.6105, decided February 16, 2022.
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About the author
Dr. J. Guilherme de Andrade Cintra — Founding Partner · OAB/SP nº 220.915. Editorial co-authorship assisted by artificial intelligence (Anthropic Claude) as editor, under the review and responsibility of the signing attorney.
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