巴西最高法院8月密集审理5346亿雷亚尔税务案，在巴中资企业需重估合规风险

Luis Wulff Divulgação Brazil’s Supreme Court and Superior Court of Justice return from their judicial recess with a series of tax cases potentially worth billions of reais. Legal experts expect the country’s highest courts to step up their review of tax disputes in the second half of the year, particularly as Brazil prepares to transition to its new consumption tax system. Starting in January 2027, the Contribution on Goods and Services, known as CBS, will replace the PIS and Cofins federal social taxes. The federal government identified 30 pending tax lawsuits classified as possible fiscal risks in an annex to the 2026 Budget Guidelines Law. The cases are before either the Supreme Court (STF) or the Superior Court of Justice (STJ). Tax exemption maintained for sales to the Manaus Free Trade Zone Brazil weighs softer rollout as tax reform testing begins Impact estimates are available for 14 of them and total R$534.6 billion, based on figures updated through June 2025. The largest, valued at R$325 billion, concerns whether a supplementary law is required before PIS and Cofins can be levied on imports. No hearing date has been set. During the second half, the courts are expected to consider issues ranging from PIS and Cofins taxation and fiscal incentives to tax reform and administrative litigation. Their rulings could establish broader judicial guidance and affect taxpayers in retail, manufacturing, agribusiness, the automotive industry and foreign trade, as well as government revenue. August docket August currently has the heaviest tax docket of the year at both courts, a survey by law firm Cascione Advogados found. The STF has scheduled four sessions, while the STJ will hold one session covering five cases under its binding-precedent procedure. No estimates have been released for the potential financial impact of those proceedings. Gabriel Bonilho, a tax attorney at the firm, said the cases posing the largest fiscal risks have yet to be scheduled. “August currently has the heaviest tax docket of the year,” Bonilho said. At the STF, the main case concerns whether the municipal services tax, known as ISS, should be included in the calculation base for PIS and Cofins, under Theme 118. The Federal Revenue Service estimates that a ruling against the government could cost public coffers about R$35.4 billion. The case has been before the court since 2008. Bonilho believes the court could complete its review in the second half and may add other tax cases to its calendar. “Several of these cases have been held back since 2024,” he said. The attorney also pointed to the tax reform transition and the introduction of CBS in 2027, while noting that the STJ has been moving quickly through tax-related cases. Corporate exposure Bonilho recommends that companies assess their exposure to the tax issues now before the courts, particularly those involving PIS and Cofins as the reform moves forward. Many of the disputes directly affect retail, automotive manufacturers and importers, he said. Under Supplementary Law 214 of 2025, PIS and Cofins credits may be used to pay CBS starting in 2027. The STF’s full bench is also expected to resume on August 26 its review of legislation that eliminated the government representative’s tie-breaking vote at the Administrative Council of Tax Appeals (Carf). The current vote stands at 5-1 against the National Treasury in three constitutional challenges, ADIs 6399, 6415 and 6403. Henrique Mello, a professor and tax attorney at HMLaw, expects the court to uphold the legislative change and confirm the elimination of the casting vote in cases that end in a tie. “In practical terms, a decision along those lines would represent a victory for taxpayers’ fundamental guarantees enshrined in the Constitution, including due process, strict legality and the principle of resolving doubt in favor of the taxpayer,” Mello said. Supplier discounts At the STJ, one of the most consequential cases will determine whether bonuses and discounts granted by suppliers must be included in the PIS and Cofins calculation base, under Repetitive Theme 1412. The court’s First Section is scheduled to review three special appeals on the matter on August 20. STJ panels have so far reached conflicting conclusions. The First Panel ruled that bonuses and discounts offered by suppliers to retailers should not be included in the tax base, including discounts conditional on obligations associated with a purchase-and-sale transaction. The Second Panel, by contrast, found that conditional discounts and bonuses should be included when calculating the social contributions because they constitute gross revenue for the retailer and are therefore taxable. Such arrangements are common in the market. Luis Wulff, chief executive of tax intelligence and credit-recovery company Tax Group, said the ruling could have significant consequences for commercial contracts. “After this ruling, companies will have to review whether the contractual structures used by suppliers can still be treated as merely additional arrangements,” Wulff said. The issue is particularly important because Brazil is nearing the end of the PIS and Cofins system, he added. “However, there is a risk that many taxpayers will enter the new tax system carrying substantial liabilities if the First Section adopts the Second Panel’s interpretation,” he said. Contract structures Wulff said the central question will be how the court distinguishes among merchandise bonuses, conditional discounts, financial transfers, volume-based awards, commercial allowances, expense reimbursements and other arrangements. “I believe this ruling will have a real impact on manufacturers, distributors and retailers, prompting them to reorganize commercial contracts throughout the country,” he said. There is also strong interest in another STJ case concerning the five-year statute of limitations for seeking refunds of taxes that were overpaid or paid improperly. The court will determine whether the period established in Article 168 of the National Tax Code should be measured from the beginning of a tax-offset procedure or only after the process has been fully completed, including the filing of all tax-offset declarations, known as Dcomps. Four special appeals have been selected for judgment under the binding-precedent procedure, known as Theme 1428. Credit deadlines The National Treasury argues that the limitation period for using court-recognized tax credits should be calculated separately from the filing date of each Dcomp. Wulff said that interpretation is harmful to taxpayers, particularly exporters that accumulate credit balances. In his view, it fragments a single court-recognized entitlement into multiple independent acts, artificially reducing the time available to use the credit. “This ruling, in my view, could mean that taxpayers win their lawsuits but never receive the money,” he said. “If this restrictive interpretation prevails, companies with large tax credits and only a small amount of monthly tax liabilities—or liabilities insufficient to absorb those credits—will lose part of their entitlement.” The National Treasury told Valor that it would not comment on the cases. The Office of the Attorney General said it continues to support the positions already presented in the court filings.