By Janini Denipoti and Nicolle Sprea Dondalski
The First Section of the Superior Court of Justice (STJ) concluded, on June 10, 2026, the judgment of Repetitive Theme No. 1,339, establishing the understanding that retailers are not entitled to maintain PIS and COFINS credits on the acquisition of fuels subject to the monophase tax regime.
The central issue was to determine whether fuel retailers would be entitled to maintain such credits from the entry into force of Complementary Law No. 192/2022 (March 2022) until December 31, 2022, or, alternatively, until September 22, 2022—the end of the ninety-day period counted from the publication of Complementary Law No. 194/2022.
The discussion originated from the regulatory framework introduced by Complementary Law No. 192/2022, which, in addition to regulating the monophase ICMS taxation on fuels, reduced to zero the PIS and COFINS rates levied on the production and importation of Liquefied Petroleum Gas (LPG), among other fuels.
This reduction, established by Article 9, ensured that companies throughout the economic chain could maintain credits related to their respective transactions until December 31, 2022. A few months later, however, the regulatory framework was altered by the enactment of Provisional Measure No. 1,118/2022, on May 17, 2022, which removed from the legal text the guarantee of obtaining and maintaining such credits.
The provisional measure, published on May 18, 2022, was not converted into law and lost its effectiveness in September of the same year. At the same time, in June 2022, Complementary Law No. 194/2022 consolidated the prohibition by adding Paragraph 2 to Article 9 of Complementary Law No. 192/2022, expressly prohibiting the use of credits in resale transactions subject to a zero rate, exemption, or non-taxation under PIS and COFINS. From the taxpayers’ perspective, this was viewed as an indirect increase in the tax burden, implemented without observing the constitutional rules on tax anteriority set forth in Articles 150, III, “c”, and 195, §6, of the Federal Constitution, in addition to violating the principles of non-cumulativity and legal certainty.
The judgment of the matter began on November 12, 2025, when Reporting Justice Gurgel de Faria presented an opinion unfavorable to taxpayers. According to the Reporting Justice, the legislative changes introduced in 2022 did not create a new hypothesis for tax credits but merely reaffirmed the traditional logic of the monophase regime, under which retailers do not pay the contributions at the resale stage and, therefore, are not entitled to obtain or maintain credits related to the acquisition of fuels.
Following the Reporting Justice’s vote, the judgment was suspended due to a request for review by Justice Teodoro Silva Santos. Ultimately, the First Section followed the Reporting Justice’s understanding and established a thesis unfavorable to taxpayers, consolidating the interpretation that the legislative changes introduced in 2022 did not create any exceptional right to tax credits within the scope of the monophase regime.
The decision is expected to be officially published in the coming weeks, and the Tax Law team at Marins Bertoldi continues to monitor developments on this matter and remains available to clarify any questions, as well as to assess the practical impacts of the decision for its clients and business partners.
