The Federal Supreme Court (STF) has issued rulings in favor of taxpayers against reducing, in 2015, the benefit offered by the Special Regime of Reintegration of Taxes for Exporting Companies (Reintegra). Decree No. 8,415 reduced the tax benefit granted so far from 3% to 1% on export revenue as of March 1 of that year. Companies question the fact that the decree that did not respect constitutional deadlines to promote the changes.
In the Supreme Court, some taxpayers have been able to maintain the 3% rate over the whole of 2015. Others have obtained decisions that maintain the 3% rate in March, April and May of that year. There are individual decisions by ministers Ricardo Lewandowski, Celso de Mello, Rosa Weber, Roberto Barroso, Dias Toffoli and Marco Aurélio.
Reintegra was instituted in 2011 by Law No. 12.546 / 2011 with the purpose of compensating exporters' tax costs. It would last until December 31, 2012, in the percentage of 3% on the export revenue of industrialized goods. These credits could be used to pay tax debts or redress in kind.
In 2014, Ordinance No. 428 of the Ministry of Finance extended the benefit for an indefinite period. In February of the following year, however, Decree No. 8,415 amended the program regulations. The percentages now correspond to 1% between March 1, 2015 and December 31, 2016; 2% from January 1, 2017 to December 31, 2017 and 3% from January 1, 2018 to December 31, 2018.
Taxpayers claim that the decree reducing the tax benefit did not respect the constitutional principle of priority that prohibits the increase of tax in the same exercise of the law that instituted it. They argue that even the principle of nonagesimal priority, as laid down in Article 150 of the Constitution, has not been respected.
Based on these arguments, Dana Industrias and Dana Spicer Industria e Autoparts obtained judicial authorization to use the 3% percentage in 2015. The decision was issued by Minister Marco Aurélio in December (RE 964,850). According to the magistrate "the infralegal acts implied indirect increase of the tax, because they revealed reduction of the prevailing tax benefit, having to be observed, also in these cases, the principle of the precedence".
According to the lawyers who advised Dana Industrias, Rafael Diehl and Alexandre Eiras of Diehl & Cella Advogados Associados, the decision is very positive. "Although it is a decision given by only one minister, we believe that the taxpayer will certainly benefit, since such a decision signals the consolidation of the STF's tendency to apply the principle of precedence in indirect tax increases caused by the reduction of benefits. tax, "says Eiras.
Another recent decision by Minister Ricardo Lewandowski in favor of the company Cecrisa Investimentos Ceramicos secured the 3% benefit on export revenue for the months of March to May 2015.
Cecrisa's lawyer in the lawsuit, Maurício Levenzon Unikowski of UNK Unikowski Advogados, claims that taxpayers were surprised by Decree No. 8.415 / 2015 which unexpectedly reduced Reintegra's tax benefit.
For him, the reduction of the benefit is improper for 2015, respecting the principle of annual priority, or at least for a part of that period, respecting the principle of nonagesimal priority. "The reduction of this benefit necessarily implied an increase in the tax burden borne by taxpayers, so it must be subject to the principles and rules of tax law, notably the principle of priority."
According to the decision of Minister Ricardo Lewandowski (RE1.081.193), it is the jurisprudence of the Supreme Court to consider that the principle of priority is applicable to the revocation or reduction of the tax benefit "in view of the fact that they generate the tax burden of indirect way ". The magistrate cited precedents in this regard of the rapporteur of Minister Marco Aurélio in dealing with the revocation of ICMS tax benefit in Rio Grande do Sul (RE 564225) and another of the rapporteur of Minister Gilmar Mendes (RE 775181).
The company appealed against an unfavorable decision of the Federal Regional Court (TRF) of the 4th Region, which according to Unikowski, "currently has controversial jurisprudence on the subject".
The Attorney General's Office of the National Treasury (PGFN) reported by note that "there is as yet no consolidated jurisprudence within the Federal Supreme Court, but isolated cases that have been challenged by the National Treasury in appeals." p>
According to the note, "In this case it is not at stake to change the elements of the matrix rule of a specific tax incidence - tax rate, basis of calculation or material core of the incidence hypothesis. On the contrary, Reintegra is a benefit of character. generally not linked to the payment of specific tax credits - so much so that it may be reimbursed in kind or offset against other federal taxes. " In this sense, according to the PGFN, "it does not seem right to say that changing its rules necessarily implies the increase of a certain tax - which would justify the application of the principle of priority."