In a recent decision, the Federal Supreme Court ruled about the unconstitutionality of article 170, §§ 1 and 2, of Normative Instruction n. 97/2009, in which the Brazilian Federal Revenue Service requires the payment of social contribution related to export earnings in operations conducted by trading companies.
The decision of the Supreme Court meets the constitutional command of article 149, paragraph 2, I, which expressly set that social contribution does not affect export operations.
Although the constitutional text employs a broad and comprehensive prescription, without differentiating the type of operation – direct or by a commercial company – the Federal Revenue of Brazil limits the scope of immunity, allowing only when the exportation involves Brazilian exporter directly with the foreign importer.
The decision, which deemed unconstitutional the article of the Normative Ruling, was delivered within a Direct Action of Unconstitutionality and started to have effects for everyone, including taxpayers who did not discuss the matter in judicial and administrative matters.
In this scenario, two conclusions are noticeable: the taxpayer is no longer obliged to pay social contributions for reasons of export operations, and, if he did, he is entitled to a refund of the tax credit paid in error.
GUSTAVO MARTINEZ BORGES is an attorney at Jorge Gomes Advogados, a graduate student at Brasilian Institute of Tax Studies (IBET) and undergraduate student of account sciences at Accounting, Actuarial and Financial Research Institute Foundation (FIPECAFI).
