Dados necessários para melhorar nosso serviço e personalizar a sua experiência.
The moment of the occurrence of the event generating the export tax and the oil and gas sector
The website Petróleo Hoje, from the magazine Brasil Energia, published the article signed by Drs. Donovan Mazza Lessa, Marcos Correia Maia and Michel Noronha Pires, partners at Maneira Advogados, which addresses the issue surrounding the moment in which the event triggering the Import Tax occurs, focusing on the oil and gas sector.
The moment of occurrence of the event triggering the export tax and the oil and gas sector
When would the event triggering the export tax provided for in MP nº 1,163/23 occur?
By Donovan Mazza Lessa, Marcos Maia and Michel Pires
As the oil and gas sector knows, on 03/01/23, MP nº 1,163/23 was published – with immediate effect –, which, in its art. 7th, established a 9.2% Export Tax rate on operations with crude petroleum oil destined abroad, expected to be in force until 06/30/23.
This new requirement has been questioned through three direct actions of unconstitutionality (7362, from ABEP; 7359, from PL; and 7360, from the Novo Party) which are brought together under the report of minister Gilmar Mendes in the STF, awaiting judgment in the Plenary.
In this context, a particular question has been formulated: considering that the sector, in its export processes, uses the “advance shipment” system provided for in art. 96 et seq. of IN RFB No. 1,702/17, when would the event generating the Export Tax provided for in MP No. 1,163/23 occur?
The answer to this question generates some important effects regarding the collection of taxes, which will be highlighted below.
Time of occurrence of the event generating the export tax
The taxable event for the Export Tax, in accordance with art. 1st of Decree-Law No. 1,578/77, is the departure of the good from the national territory, which is considered to have occurred “at the time of issuance of the export guide or equivalent document” (currently, the DU-E – single export declaration).
In the case of the oil and gas sector, export procedures carried out by companies operating in it, as a rule, occur through the “advance shipment” system provided for in art. 96 et seq. of IN RFB nº 1,702/17.
Through this procedure, the exporter registers an “initial” DU-E, which will not be subject to customs clearance at that time. In other words, the merchandise can be shipped and cross Brazilian borders regardless of the completion of customs clearance, which will only end a posteriori, when the exporter rectifies the DU-E (within 60 days) for the “inclusion of the export invoices corresponding to the exported goods and exclusion of the items on the basis of which early shipment was authorized”.
This special procedure is necessary because the oil exporter, when issuing the DU-E, does not yet have all the information he needs to issue the export invoice, which only happens later. Thus, once shipment is completed, the export invoice is issued, the DU-E is rectified to include the aforementioned note (within 60 days, according to art. 28, II, “b” c/c art. 100, II, “a”, of IN RFB nº 1,702/17) and customs clearance is considered closed.
Therefore, the conclusion that can be reached is the following: the event generating the Export Tax, in accordance with the literality of §1 of art. 1st, of Decree-Law No. 1,578/77, is considered to have occurred at the time of registration of the DU-E which, as we know, must be done before shipment and subsequent departure of the merchandise from national territory. And this reasoning is based on the following premises:
(i) The registration of the DU-E (which will be subsequently rectified) already characterizes the beginning of export customs clearance, according to art. 20 of IN RFB nº 1,702/17. This is not finalized due to the specific characteristics of the oil export operation, which requires its own regime, called “advance shipment”, to be operationalized. In other words, through this regime, the occurrence of the triggering event is not postponed. On the contrary, the triggering event occurs, under the terms of art. 1, §1, of DL nº 1,578/77, but the assessment of the tax is made later, when the company is able to provide all the elements that made it up;
(ii) The occurrence of the triggering event cannot be conditioned on the fulfillment of a certain ancillary obligation, such as the rectification of the aforementioned declaration. Accepting this premise is agreeing that the taxpayer could, at his pleasure, manipulate the date of the occurrence of the triggering event depending on the 60-day period he has to present the rectifying DU-E (according to art. 100, II, “a”, of IN RFB nº 1.702/17), which would be nonsense and, evidently, has no support in the current tax system.
In the past, a similar situation was faced by the Federal Supreme Court as a result of the publication, by the National Monetary Council, of Resolutions No. 2,112/94 and 2,136/94, which established new rates on sugar exports.
In RE nº 223,796, when analyzing the moment of occurrence of the triggering event for the purpose of determining the applicable rate, Minister Ellen Gracie explained that, by fiction, it was allowed to anticipate the moment of physical crossing of borders, in order to equate, to the moment of exit, the moment of issuance of the export guide authorizing that same exit. The aforementioned ruling also records that – with the creation of Siscomex – the computerized systems began to be fed by the taxpayer himself, which equated the export registration with the export guide, this being precisely the moment in which the tax-generating event occurred.
More recently, the DU-E was established, with the express provision that it “produces effects equivalent to those of export registration” (art. 110 of IN RFB nº 1,702/17). Therefore, applying the STF rationale to the current system, the triggering event occurs at the time of registration of the DU-E, and it is irrelevant, for this purpose, whether it will have to be subsequently rectified, as we have demonstrated.
In the same vein, the Superior Court of Justice has firm jurisprudence that the event generating the Import Tax “is consummated on the date of registration of the import declaration”. Its occurrence is not subject to subsequent acts by the taxpayer, which may delay the effective entry of the asset into the national territory and, thus, manipulate the occurrence of the triggering event.
In summary, whether in import or export, the occurrence of the triggering event should not be confused with the subsequent assessment of the tax or with any other measures necessary to complete customs clearance, which, as we know, is a complex procedure.
And this rationale is in line with the oil export system itself, which requires some procedures prior to registering the DU-E, such as obtaining prior approval for export from the ANP through the LPCO module of Siscomex (SECEX Ordinance No. 19/19). In other words, the taxpayer requests authorization from the ANP and then presents the DU-E. There are, therefore, procedures that denote the occurrence of the event generating the Export Tax at that moment, in line with what is stipulated in art. 1st, §1st, of DL nº 1,578/77.
In light of the above, some important conclusions can be drawn.
Firstly, if a company registered a DU-E before the entry into force of MP nº 1,163/23 (i.e., at a time when the IE rate of 9.2% was not yet in force), the Federal Tax Authorities will not be able to demand the payment of the Export Tax when the procedure for rectifying the aforementioned declaration takes place, given that the triggering event, in our opinion, has already materialized.
In other words, even if the rectification of the DU-E occurs within the validity period of the Import Tax (until 06/30/23), the taxpayer will be exempt from paying the Export Tax if they registered the DU-E before 03/01/23 (which, as we know, was the date of publication of MP nº 1.1.63/23).
On the other hand, a possible rectification of the DU-E, after 06/30/23, will not exempt the taxpayer from paying the Export Tax related to an operation registered prior to that date (i.e., when the IE was already in full force), since, following the reasoning explained above, the event giving rise to the exaction would have already occurred under the terms set out in art. 1st, §1st, of DL nº 1,578/77.
The assessment of the tax (read: requirement of the IE through the issuance of the respective collection guide), when facing the “early shipment” procedure, will occur after the verification of the taxable event, but will refer to the legislation in force at the time, exactly as determined by art. 144 of the CTN.
It is expected that this scenario of legal uncertainty will dissipate with the judgment of the direct actions by the STF, since the Export Tax established by MP nº 1,163/23, despite having been in force for almost three months, continues to be the subject of numerous debates and uncertainties on the part of its taxpayers.
Donovan Mazza Lessa has a PhD in Tax Law and Public Finance from UERJ and partner at Maneira Advogados
Marcos Correia Piqueira Maia is a PhD student in Tax Law at the Complutense University of Madrid and partner at Maneira Advogados
Michel Hernane Noronha Pires has a master's degree in civil procedural law from PUC/SP and partner at Maneira Advogados
See other related news stories
Press
Averages should not ignore the Contumacious Debtor Law, experts say
May 11, 2026Media should not ignore the Contumacious Debtor Law, experts say Risks are greater for companies that fail to comply with balance sheet obligations and are unaware of the situation of related parties By Suzana Liskauskas, Para o Valor — Rio de Janeiro Instituted...
