The Federal Supreme Court (STF) unanimously upheld the preliminary injunction issued by Minister Dias Toffoli, which set a 90-day deadline for the entry into force of Provisional Measure 1,118/2022, which removed from end-user fuel companies the right to use PIS and Cofins credits resulting from operations with a zero contribution rate.
Toffoli partially granted the request for a preliminary injunction from the National Transport Confederation (CNT), which had requested the immediate suspension of the effectiveness of the provisional measure.
As a practical effect, final acquiring taxpayers will be entitled to take advantage of PIS and Cofins credits within 90 days from the publication of the MP – that is, from May 18, 2022.
The rapporteur granted the injunction based on the prevailing understanding of the Supreme Federal Court, according to which the indirect increase in taxes, including through the revocation of tax benefits, must be subject to the constitutional rules of general and nonagesimal prior notice, as the case may be.
MP 1,118 amended Complementary Law 192/2022, removing the right of final purchasers of fuels subject to the zero rate to take advantage of PIS/Cofins credits linked to these transactions. Only the right of legal entities that produce and resell fuels to credit was preserved.
Merit
The STF will still judge the merits of the action, that is, the constitutionality of MP 1.118. For the CNT, the regulation should be declared unconstitutional because, in addition to failing to observe the ninety-day period, it violated the principles of legal certainty and no surprises. The entity claims that the prohibition on the use of credits by the final purchaser will have a serious impact on independent truck drivers, transport companies and public transport companies, which are the final consumers.
When partially granting the injunction, Toffoli advanced his position on the merits, emphasizing that it was a preliminary analysis. “Considering the 90-day period in question, I do not see, even in terms of a superficial judgment, any violation of the principles of legal certainty or non-surprise,” he stated.
According to the rapporteur, the STF has “solid” jurisprudence in the sense that there is no acquired right to a legal regime, including in terms of tax matters.
Toffoli also highlighted that, when judging RE 1,043,313/RS, Theme 939, of which he was the rapporteur, the STF Plenary decided that the legislator, who has autonomy to deal with the non-cumulative nature of the PIS and Cofins contributions, can revoke the legal norm that provided for the possibility of calculating certain credits within this system, as long as general constitutional principles, such as equality and reasonableness, are respected.