By Tax Area

On June 23rd, 2022, Supplementary Law No. 192/2022 was enacted, which reestablished the right to the recording of PIS and COFINS credits by final purchasers in the fuel production chain.  Before the enactment of the rule, the recording of credits of these contributions by the final purchasers could only be made up to a period of 90 days from the publication of the Provisional Presidential Decree No. 1.118/2022, as decided by the STF in the Direct Action for the Declaration of Unconstitutionality No. 7181/DF (“ADI No. 7181/DF”).

Supplementary Law No. 192/2022, in its original wording, reduced the PIS and COFINS rates levied on revenues from fuel operations, maintaining the credits linked to such activities until 12.31.2022. This provision encompassed all legal entities in the production chain, including final purchasers.

However, with the enactment of Provisional Presidential Decree No. 1.118/2022, Supplementary Law No. 192/2022 was amended, limiting the right to the recording of PIS and COFINS credits to producers or resellers in the fuel production chain.  In this context, ADI No. 7181/DF was filed to question the aforementioned provisional presidential decree, including with regard to the exclusion of the recording of credits by final purchasers. 

In June 2022, a decision was issued by the STF determining that Provisional Presidential Decree No. 1.118/2022 could only enter into force 90 days after its publication, in view of the principle of nonagesimal priority, reason why the final purchasers in the fuel production chain would have until 08.16.2022 to be entitled to the recording of PIS and COFINS credits. 

It is undeniable that the decision issued in ADI No. 7181/DF created two scenarios for purposes of the recording of PIS and COFINS credits insofar as, while fuel producers/dealers could benefit from the provisions of Supplementary Law No. 192/2022 until 12.31.2022, final purchasers would be entitled to such right until the effectiveness of the Provisional Presidential Decree No. 1.118/2022, that is, 90 days after its publication.   

The enactment of Supplementary Law No. 192/2022, therefore, avoided the likely judicialization of the matter by eliminating the distinction made between the different taxpayers that are part of the fuel production chain, which violated the principle of tax equity.