By Jean Carlo da Silva and Viviane de Carvalho Lima 

The Brazilian Federal Revenue Service (“RFB”) has introduced a significant change to the rules on refund and offsetting of tax credits through the publication of Normative Instruction RFB No. 2,288 of 30 October 2025, which amended Normative Instruction RFB No. 2,055/2021. The focus of this amendment is a clear signal from the tax authorities to curb the indiscriminate use of collective writs of mandamus as a tax planning strategy for the offsetting of tax credits.

The new regulation raises a red flag for taxpayers who have relied on court decisions obtained by associations deemed to have a generic nature, that is, those whose corporate purpose is overly broad. There is a potential risk of disallowance of offsets, as well as denial of credit registrations, if the new and strict administrative requirements are not met.

This is because the Federal Tax Authorities have tightened control over the registration of credits arising from court decisions rendered in collective writs of mandamus (Article 102 of NI 2,055) where there is no evidence both of the specific corporate purpose of the entity that filed the claim and of the suitability of the taxpayer’s membership in relation to the territorial and substantive scope of the relevant association, as defined at the time the lawsuit was filed. In such situations, the rule now expressly provides for denial of the request.

And not only that. Among the new, more restrictive conditions — when compared to the general rule — for the validation of credits arising from collective judicial titles is the requirement that the taxpayer’s membership in the association, or entry into the relevant professional category, must necessarily have occurred prior to the final and unappealable judgment (res judicata) of the class action. As for the period in which the credit may be used, it is limited to taxable events occurring after the date on which the company became a member of the association, and only for as long as that membership is maintained.

These restrictions weaken the possibilities for taxpayers to adhere to judicial titles that have already become final and unappealable — a practice that, in recent times, had become fairly common, but was the subject of intense judicial controversy.

This is yet another chapter in the ongoing dispute between taxpayers and the tax authorities on this subject, insofar as the new rules heighten legal uncertainty regarding the legitimacy of such credits and indicate an increased risk of tax exposure for companies that adhere to this practice without complying with the newly introduced conditions. This is because these new objective criteria are binding on the Tax Administration and create room for an intensification of tax litigation.

In short, Normative Instruction RFB No. 2,288/2025 represents a tightening of tax oversight and a formal restriction on the scope of the effects of judgments rendered in class actions, requiring taxpayers to exercise utmost caution and to immediately reassess their strategies for using tax credits arising from such judicial titles.

The Tax Law Team of Marins Bertoldi Advogados is closely monitoring developments on this matter and remains at your disposal to clarify any questions and to assess, in a strategic and tailored manner, any potential impacts arising from this new regulatory framework.