The Special Regime for Reintegrating Tax Values for
Exporting Companies (REINTEGRA, acronym for Regime especial
de reintegração de valores tributários
para empresas exportadoras),
reinstituted by Law 13043/2014, is a tax benefit aimed at
promoting exports of goods manufactured in Brazil (listed in
Decree 8415/2015), by granting exporters the right to calculate
the Social Contributions on Gross Revenues (PIS and COFINS)
deemed credits based on export revenues.
This REINTEGRA tax benefit has been a great advantage for
exporters, especially because the deemed credits may be used
for offsetting against federal taxes due by the exporter or
reimbursed in cash, and the amounts received as credits are not
subject to Corporate Income Tax (IRPJ), Social Contribution on
Net Profits (CSLL), and PIS and COFINS.
The deemed credits are calculated by applying a rate from
0.1% to 3% – to be determined by the Executive Branch
– on each company’s export revenues. In
this context, Decree 8415/2015 established that the applicable
rate for this tax benefit in the period between January 1,
2017, and December 31, 2018, would be 2%.
However, on May 30, 2018, Decree 9393/2018 was published by
the Federal Government, reducing, as of June 1, 2018, the rate
from 2% to 0.1%.
The rate reduction carried out with immediate effect is
unconstitutional, as it instantly increases the PIS and COFINS
tax burden. This is because the Brazilian Federal Constitution
establishes that increases in social contributions, such as the
PIS and COFINS, can only produce effects after a 90-day grace
period for the rule to become effective known as tax
Tax anteriority, in our opinion, applies not only to tax
rate increases but also to any tax burden increase, direct or
indirect. To this effect, a reduction of a tax benefit equates
to an indirect tax burden increase that should be subject to
the tax anteriority.
There are precedents of the Brazilian Federal Supreme Court
regarding past reductions of the REINTEGRA, in which the
immediate reduction of the deemed credits rate, which could
only be applied after the 90-day grace period, was deemed
In this context, there are strong legal grounds to challenge
the immediate effects of Decree 9393/2018, postponing it for 90
days, assuring the applicability of the 2% rate for the tax
benefit during this period. Brazilian taxpayers are already
challenging this matter, and have been obtaining favourable
preliminary injunctions at the federal courts.
The Brazilian Federal Constitution establishes certain
principles that exist to protect companies and individuals,
such as tax anteriority and legal security. The constitutional
rules cannot be simply disregarded by the government, under
penalty of increasing even more the tax litigation in
Ricardo M. Debatin da Silveira (email@example.com
) and Gabriel Caldiron Rezende (firstname.lastname@example.org
) are members of Machado Associados’
indirect tax team.