The Supreme Federal Court (STF) has ruled constitutional the possibility for the Executive Branch to reduce the percentages of Reintegra for taking credits of PIS and Cofins contributions on export revenues, in ADIs 6040 and 6055, by a 7-2 majority.
The winning vote was cast by Justice Gilmar Mendes (Rapporteur), who stated that the government has the discretion to reduce Reintegra percentages according to the economic context. According to the Rapporteur, the program is a tax benefit and, therefore, unrelated to the tax immunity of exports as provided for in the Federal Constitution.
Justice Mendes based his reasoning on Theme 475 of the Supreme Court, which defines that the ICMS export immunity does not extend to the earlier stages of the production chain before the product is sold abroad. In other words, the immunity applies only at the moment of the actual export and not to the production process.
The dissenting votes, in favor of the taxpayers, were cast by Justices Luiz Fux and Edson Fachin. They argued that reducing credit percentages results in the exportation of taxes, violating the constitutional immunity.
Justice Fux argued that lowering the percentages increases taxes and reduces the competitiveness of national products in the international market. In practice, this means the exportation of taxes, which violates the tax immunity of exports. Justice Fachin supported this dissent. Justices Cármen Lúcia and Nunes Marques did not vote.
Thus, the following general repercussion thesis was established: “The provision in Article 22 of Law 13.043, of 2014, which authorizes the Federal Executive Branch to set the percentage for calculating credits by exporters on the revenue obtained from the export of goods abroad within the Reintegra framework, is constitutional, as it is a government subsidy measure, distinct from the rules that grant export immunity.”
As a result, exporting companies will continue to be subject to reductions in Reintegra percentages. Law 13.043/2014, which regulates Reintegra, allows PIS and COFINS crediting at rates ranging from 0.1% to 3%. Thus, Decree 9393/2018, which limited the refund rate to the minimum percentage of 0.1%, was deemed valid by the Supreme Court.
However, it is important to note that the corresponding rulings have not yet been published, allowing for a detailed analysis of their full content.
The Tax Law Department of Marins Bertoldi Advogados remains attentive to developments on this matter and is awaiting the publication of the rulings. We are available to clarify any doubts and delve deeper into this issue within each company’s context.
By Enrique Grimberg Kohane
