The Federal Supreme Court (STF) of Brazil reached a majority decision (10 votes to 1) establishing that any reduction in the reimbursement rate under the Reintegra program must observe the 90-day prior notice requirement (anterioridade nonagesimal), as provided in Article 150, III, “c”, of the Federal Constitution. The ruling, which is unfavorable to taxpayers, considers such reductions as de facto increases in the tax burden imposed by the PIS and Cofins contributions.
The Reintegra program (Special Regime for the Reinstatement of Tax Values to Exporting Companies) allows Brazilian exporters to recover part of the residual federal taxes embedded in the production chain, through credits calculated on export revenues. The reimbursement rate—ranging from 0.1% to 3%—is established by Executive Branch decree.
The prevailing opinion followed the reasoning of Justice Cristiano Zanin, who held that a reduction in the Reintegra rate constitutes an indirect tax increase and, therefore, requires compliance with the 90-day waiting period before it can take effect.
In dissent, Justice Edson Fachin argued that the rule of annual prior notice (anterioridade anual), set forth in Article 150, III, “b”, of the Constitution, should also apply. According to him, Reintegra constitutes a special tax reimbursement regime, rather than merely a benefit linked to the PIS/Cofins contributions. Justice Fachin’s position was joined only by Justice André Mendonça.
The Court’s decision did not endorse the applicability of the annual prior notice requirement, which means that the Federal Government may reduce Reintegra rates by decree, provided the 90-day notice period is respected.
As the case was decided under the system of general repercussion (repercussão geral), the ruling has binding effect on all pending and future cases addressing the issue, thereby ensuring uniformity of judicial interpretation.
Nonetheless, the decision departs from prior STF precedents—namely, Themes 881 and 885—which upheld the need for annual prior notice in cases of indirect tax increases. The matter may still be subject to motions for clarification (embargos de declaração) and, potentially, requests for modulation of effects, particularly given the economic impact on the export sector.