The cooperative act, historically governed by Law No. 5,764/1971 and the result of extensive case law development, came to be expressly regulated—following the Tax Reform introduced by Constitutional Amendment No. 132/2023—within the new consumption taxation system, through Complementary Law No. 214/2025. However, the tax treatment provided appears imprecise and fails to technically preserve the legal and operational nature existing among cooperatives, creating a space of ambiguity by treating as a specific regime what was previously regarded as outside the scope of tax incidence.
Unlike ordinary commercial companies, which carry out their own economic activity, driven by business exploitation and grounded in a profit-oriented logic, cooperatives, in the exercise of the typical cooperative act and even though they possess economic relevance, operate as a kind of collective mechanism within a structure aimed at enabling common objectives, especially through the economic organization of groups that, individually, would have lesser capacity for market access, negotiation, and permanence, also generating social impact through the reduction of asymmetries and the sharing of costs among the actors in the chain – the cooperative and its members.
It is precisely due to this particularity that the cooperative act receives distinct treatment, having as its main normative basis, until now, Article 79 of Law No. 5,764/1971[1]. Although legally defined, however, said Law does not exhaust its tax effects, leaving it to case law to construct the applicable limits to cooperatives, in dialogue with the competence granted by the Federal Constitution to ensure adequate tax treatment of the cooperative act. It is within this context that cooperatives began to seek judicial relief, in order to obtain recognition that cooperative acts (at least the typical ones), as they do not involve trade or profit-making purposes, should not be treated as ordinary taxable transactions. This understanding gained particular relevance with Repetitive Theme 363[1], in which the Superior Court of Justice (STJ) declared the non-taxation of PIS and COFINS on cooperative acts, establishing that revenues arising from internal transactions between the cooperative and its members, which are typical cooperative acts, do not correspond to revenues derived from commercial economic circulation.
Although the Superior Court’s ruling serves as a conceptual guideline, the discussion regarding the proper tax treatment of cooperatives has continued to occupy a significant place in the Judiciary, since the controversy is not limited to the formal existence of a cooperative, but extends to the analysis of the typicity of the act performed, the occurrence or non-occurrence of the taxable event, and consequently the very emergence of the tax obligation, thus reaching the very field of non-incidence.
Recognizing this entire debate, the legislator, through Complementary Law No. 214/2025, provided a specific framework for cooperative acts within the new consumption taxation system, located in Articles 271 and 272[2]. The regulatory provision, however, does not appear to provide an adequate framework, insofar as it addresses the matter through the logic of opting for a specific regime with zero tax rates, removing the cooperative act from legislative silence, indeed, but doing so in order to accommodate it within a traditional language of tax incentives, distinct from that developed by case law around non-incidence, and without any technical reservation regarding the inherent nature of cooperativism.
It is also worth noting that the specific regime provided for cooperative societies in the aforementioned provisions should not be understood as the sole framework for all their sectors, given the existence of specific rules for branches such as credit and healthcare cooperatives, especially due to the particularities of financial services and health insurance plans.
The sensitivity of the discussion presented lies in identifying the fact that now guides the debate. The question that previously revolved around the cooperative act—based on its typicity, absence of commerciality, and alignment with social objectives—shifts to another perspective: the classification of the transaction under a specific regime, making it eligible for a zero rate reduction, when, in fact, it may not even fall within the scope of tax incidence.
This shift in focus is significant because the zero rate reduction and non-incidence do not belong to the same legal plane. A reduction presupposes, as a rule, a transaction within the scope of taxation, merely relieved by legislative choice. Non-incidence, on the other hand, operates at an earlier stage, when the fact does not even fulfill the taxable hypothesis. This distinction is so relevant that Complementary Law No. 214/2025 itself, in Article 6, expressly provides for situations in which IBS and CBS do not apply, demonstrating the legislator’s care regarding the technique of excluding events from the scope of taxation when that is the intended purpose.
Hence the concern regarding cooperatives under the Tax Reform framework. This is because the Complementary Law itself distinguishes situations of non-incidence from those subject to specific regimes, reductions, or preferential treatment, while recognizing the uniqueness of the typical cooperative act, yet accommodating it within the logic of a tax benefit through an optional specific regime and the application of a zero rate. The absence of a technical distinction ultimately transfers the typical cooperative act into the same normative logic applicable to ordinary commercial transactions, even though these are substantially different realities: on the one hand, internal and non-commercial acts performed between cooperative and member; on the other, transactions that may involve third parties, the market, and effective economic circulation, resulting in a weakening of the purpose and essence of the cooperative act.
This imprecision may produce effects that go beyond theoretical speculation, since its improper classification may influence the appropriation and transfer of tax credits, revenue segregation, issuance of tax documents, compliance with ancillary obligations, and, above all, the way the tax authorities interpret the relationship between cooperative and member. The apparent normative protection therefore carries a conceptual trap by transforming the typical cooperative act, historically discussed under the perspective of non-incidence, into a mere taxable transaction benefiting from a tax preference.
Thus, although the specific regime for cooperatives finds its basis in Article 156-A, §6, III of the Federal Constitution (introduced by Constitutional Amendment No. 132/2023)[1], granting formal validity to the legislative option, such constitutional authorization does not remove the need to interpret the cooperative act in light of its own nature and the adequate tax treatment guaranteed to cooperativism also by the Federal Constitution (Article 146, III, “c”)[2].
Even though the legislative advance with the express provision of a specific regime in Complementary Law No. 214/2025 cannot be denied—removing cooperatives from legislative silence and elevating them to the new consumption taxation system—the critical point lies in the technique adopted. By failing to clearly separate the typical cooperative act from other transactions performed by cooperatives, the rule maintains—and may even intensify—the debate on the proper tax treatment of cooperativism, shifting the analysis from the legal nature of the act to the correct classification of the transaction, with impacts on tax credits, ancillary obligations, issuance of tax documents, revenue segregation, and potential exposure to challenges by the tax authorities.
The regulation, therefore, does not end the debate on the cooperative act frequently brought before the Judiciary; it merely changes its location. The controversy surrounding its typicity in light of Article 79 of Law No. 5,764/1971 and established case law gains a new interpretative layer through Articles 271 and 272 of Complementary Law No. 214/2025, under the framework of a complementary statute whose normative force tends to intensify—and not reduce—the debates on the proper tax treatment of cooperatives, requiring interpreters to ensure that the new legal language does not undermine the intrinsic nature of cooperativism.
The Tax Law Center of Marins Bertoldi Advogados will continue to closely monitor developments on the matter and remains fully available to provide any clarifications.
[1] Article 79. Cooperative acts are those carried out between cooperatives and their members, between such members and the cooperatives, and among cooperatives themselves when associated with one another, for the achievement of their social objectives.
[2] Special Appeals (REsp) Nos. 1.141.667/RS and 1.164.716/MG.
[3] Article 271. Cooperative societies may opt for a specific IBS and CBS regime under which the IBS and CBS rates applicable to the transaction are reduced to zero when:
Article 272. A member subject to the regular IBS and CBS regime, including single-tier cooperatives, who carries out transactions benefiting from the rate reduction referred to in item I of the caput of Article 271, may transfer the credits from transactions preceding those in which it supplies goods and services, as well as presumed credits, to the cooperative of which it is a member, and the provisions of Article 55 of this Complementary Law shall not apply.
[4] Article 156-A. A complementary law shall establish a tax on goods and services under the shared jurisdiction of the States, the Federal District, and the Municipalities. (Inserted by Constitutional Amendment No. 132 of 2023)
§ 6. A complementary law shall provide for specific taxation regimes for:
III – cooperative societies, which shall be optional, with a view to ensuring their competitiveness, while observing the principles of free competition and tax neutrality/equality, including defining:
[5] Article 146. A complementary law shall:
III – establish general rules regarding tax legislation, especially concerning:
(c) the adequate tax treatment of cooperative acts carried out by cooperative societies, including with respect to the taxes provided for in Articles 156-A and 195, V; (Wording amended by Constitutional Amendment No. 132 of 2023).
