Amid the economic devastation brought by Covid-19, the federal government implemented a series of measures to cushion the impact on the most affected sectors. Among these, the Events Sector Emergency Resumption Program (Perse) stood out for granting significant tax benefits. This article analyzes the recent controversies involving the revocation of these benefits, highlighting the importance of legal certainty and acquired rights in the Brazilian tax context.
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Perse represented a breath of hope for the events sector, severely impacted by pandemic restrictions. Through tax incentives such as the reduction to zero of PIS/Pasep, Cofins, CSLL, and IRPJ rates for 60 months, the aim was not only to ensure the immediate survival of the sector, but also its long-term recovery.
Despite the broad debates being held in courts across the country regarding companies and activities that can effectively enjoy the benefits stipulated by law, given the acts issued by the Executive branch in apparent excess of its regulatory function, creating an illegal obstacle [1][2]the analysis proposed here is limited to highlighting the position of the higher courts regarding the possibility or not of revoking a conditional exemption.
Revocation of incentives and inviolability of exemptions
This is because, at the end of last year, at the end of the day, as is often said, the federal government issued a provisional measure revoking the benefits established by Perse.
The new rule published by the government reduces the validity period of the benefits then granted, whose initial validity would be until February 2027, revoking the zero rate of PIS, Cofins and CSLL as early as 4/1/2024, and of IRPJ from 1/1/2025 [3].
However, the issuance of Provisional Measure No. 1,202/2023, reducing the term of these benefits, generated a wave of uncertainty. This action by the federal government raises profound questions about conditional exemption, a principle well established in the National Tax Code (CTN) and reinforced by the jurisprudence of the Federal Supreme Court (STF), as seen in Precedent 544: “Tax exemptions granted, under onerous conditions, cannot be freely suppressed”.
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The Constitution, when dealing with limitations on the power to tax, determined, in its article 150, §6, that exemptions can only be granted by law. Giving concreteness to the constitutional provisions, and dealing with general rules on tax matters, the CTN deals with the exemption institute in articles 176 to 179.
Jurisprudence and doctrine have consistently defended the inviolability of tax exemptions granted for a fixed period, under the protection of the principle of legal certainty.
Views of doctrine and jurisprudence
Regina Helena Costa [4] highlights that “the conditional and fixed-term exemption cannot be terminated by the political person before the designated final term, under penalty of infringing the acquired right, in view of the principle of legal certainty”.
Master Aliomar Baleeiro [5] is consistent with this understanding, about which his work says: “The new law, which cancels the exemption, tax reduction or benefit, can never be retroactive, damaging the acquired right”.
The Superior Court of Justice, the court responsible for standardizing the interpretation of federal laws, has also taken a position on the issue. In REsp No. 1,725,452, reported by Minister Regina Helena Costa, the understanding prevailed in the 1st Panel that the early revocation of a conditional tax benefit for a specific period violates the principle of legal certainty.
The case dealt precisely with the reduction to zero of tax rates, the understanding of which the Panel understood was that, despite it not being an exemption, article 178 of the CTN must be observed, which prohibits revocation, as the exemption and zero rate have the same practical result in terms of tax relief [6].
In her leading vote, the rapporteur considered “The protection of trust in the tax sphere, one of the aspects of the principle of legal certainty, honored by the rule of article 178 of the National Tax Code, must be honored in the assessment of this appeal, under penalty of forgetting the good faith of the taxpayer, which adhered to the fiscal policy of social inclusion, designed through onerous conditions for the enjoyment of the zero tax rate incentive”.
Conclusion
The understanding that must be applied in the case of the revocation of Perse’s zero rate through MP nº 1,202/2023 is no different, given the evident offense to the principle of legal certainty, a corollary of Brazilian tax law.
The debate on the revocation of Perse tax benefits transcends the legal discussion, touching on fundamental questions about the relationship between the State and the private sector in times of crisis. Respecting the principle of legal certainty is essential not only to guarantee taxpayers’ confidence in fiscal policies, but also to sustain the country’s economic recovery.
For affected taxpayers, judicial channels remain as a resource to safeguard their rights, a path that reaffirms the importance of the judiciary in maintaining the balance between the Powers of the State and in protecting individual and collective rights in the face of questionable government actions.
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[1] ME Ordinance No. 7,163/2021
[2] ME Ordinance No. 11,266/2022
[3] Provisional Measure No. 1,202 of December 28, 2023, art. 6th.
[4] COSTA, Regina Helena. Tax Law Course. Op.Cit., P. 311.
[5] BALEEIRO, Aliomar. Op. Cit., P. 950.
[6] https://www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias/04082021-Primeira-Turma-assegura-beneficio-fiscal-oneroso-revogado-antes-do-fim-do-prazo.aspx
