STF rejects actions that could cost the Union R$49 billion
The Federal Supreme Court (STF) rejected, this Wednesday (2), two actions that questioned the reduction of the reimbursement percentage for exporting companies under the Special Regime for the Reintegration of Tax Values (Reintegra).
The Union estimated an impact of R$49.9 billion, if ministers accepted the actions. The score was 7 votes to 2. Reintegra aims to partially or fully refund the tax residue remaining in the production chain of exported goods.
Created in 2011 and valid until 2013, the program gained permanent character with provisional measure 651/2014, sanctioned as Law 13,043/2014, informed the Senate Agency. The refund is made at a rate that varies between 0.1% and 3%, applied to revenue from sales abroad.
In 2018, the National Confederation of Industry (CNI), with Direct Action of Unconstitutionality (ADI) 6,040, and the Instituto Aço Brasil, with ADI 6,055, questioned in the STF the reductions in the rate imposed by the government through decrees.
The entities argue that the Union cannot reduce this rate in a discretionary manner and without adequate justification. The trial began in 2022. The rapporteur of the cases, minister Gilmar Mendes, defended the rejection of the two actions.
Mendes pointed out that Reintegra is a tax benefit, not tax immunity, which allows the government to readjust the tax rate. “In my opinion, Reintegra fits as a tax benefit that seeks to encourage exports and national development, but it does not fit into the context of tax immunities,” he said.
Ministers Dias Toffoli, Alexandre de Moraes, Flávio Dino, Cristiano Zanin, André Mendonça and Luís Roberto Barroso followed the rapporteur’s understanding.
Disagreement on changing the Reintegra rate
Minister Edson Fachin opened the divergence by considering the decrees to reduce the rate unconstitutional. For Fachin, reducing the Reintegra reimbursement percentage “violates legal certainty in the taxation of export operations”.
The minister also stated that “any changes should only be applied in the following financial year, thus respecting the exporting taxpayer’s right to ‘no surprises’”.
Minister Luiz Fux followed Fachin’s understanding. The trial took place in the virtual plenary, a modality in which ministers simply cast their votes in the Court’s electronic system, without debating the matter.
However, Fux presented a prominent request in early September, so the actions were sent to the physical plenary.
“This new Reintegra methodology ends up increasing taxes. And what is the ratio essendi [razão de ser] of Reintegra? It means not exporting taxes, it means making exported products extremely competitive”, said Fux in his vote.
Ministers Nunes Marques and Cármen Lúcia did not participate in the trial session this Wednesday (2).
