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The export tax and the oil and gas sector: another step against development
The Estadão website published an article signed by Drs. Eduardo Maneira and Marcos Correia Piqueira Maia, partners at Maneira Advogados, which deals with the export tax on operations in the oil and gas sector.
The export tax and the oil and gas sector: another step against development
Eduardo Maneira, Tax Law Professor at UFRJ and partner at Maneira Advogados.
Marcos Correia Piqueira Maia, PhD student in Tax Law at the Complutense University of Madrid and partner at Maneira Advogados.
In February of this year, the federal government issued MP nº 1,163/23 to, for purely revenue purposes, establish a new and surprising tax burden on the oil and gas sector, which is one of the engines of the national economy, being indispensable for budget balance and job creation for several federated entities. In your art. 7th, the aforementioned MP nº 1,163/23 imposed on taxpayers, until 06/30/23, the payment of a rate of 9.2%, as an Export Tax, on all operations with crude petroleum oil and bituminous minerals destined abroad.
Against this new requirement, three direct actions of unconstitutionality were presented (ADI nº 7362, from the Brazilian Association of Oil and Gas Exploration and Production Companies – ABEP; ADI nº 7359, from the Liberal Party; and ADI nº 7360, from the Novo Party) which are gathered under the report of minister Gilmar Mendes in the STF, awaiting judgment in the Plenary.
However, a simple reading of the text contained in MP No. 1,163/23 is enough to confirm the unconstitutionality of this exaction for several reasons, and one point deserves special emphasis: its eminently “fiscal” profile, which was confessed by the federal government in the explanatory memorandum of MP No. 1,163/23, in which it made it clear that the aforementioned encumbrance aims to generate revenue of R$ 6.65 billion to offset expenses of R$6.61 billion as a result of the tax relief on internal fuel operations.
In other words, instead of being used with an extra-fiscal bias, that is, as an artifice to induce or inhibit behavior, the Export Tax was used here as a mere collection instrument. At this point, it is worth making a relevant observation: all taxes, ultimately, always have a “fiscal” function, that is, they generate revenue for public coffers. It turns out that there are taxes that, unlike the others, go further and need to have a necessary extra-fiscal character, which must stand out in relation to the collection purpose.
This is what happens with the Export Tax.
After all, the Constitution exempts it from three of the most important constitutional limitations on the power to tax, which are, the principles of legality, annual precedence and nineagesimal precedence (arts. 150, §1, and 153, §1). And the reason for this is the following: the constituent considered it to be an instrument of intervention in the economic and social order, so that agility in its implementation needs to be one of its fundamental characteristics, given that there are situations that demand immediate action on the part of the Public Power - a finding that, in itself, already reveals the extra-fiscal profile of the exaction in question.
Still along these lines, it is clear that the Constitution also encompasses the “destination principle”, applicable to transactions within the scope of international trade, which requires the total exemption of exports of goods and services so that, in this way, the country is prevented from “exporting” taxes, maintaining the competitiveness of the national product abroad. Therefore, the burden on exports is really an exception in the legal system, which confirms the aforementioned nature of the Export Tax, which arises from the interpretation of the constitutional text itself.
Therefore, imposing the payment of Export Tax for exclusively collection purposes, as MP nº 1,163/23 did, is a complete departure from the nature that the constituent itself attributed to the exaction.
And, as a central point of this discussion, we also have the provisions of art. 26 of the National Tax Code – diploma responsible for outlining the taxable event of the IE -, according to which the tax in question can only be managed to meet “objectives of the exchange policy and the foreign trade“. Right or wrong, this is what the CTN imposes, a fact that leaves no doubt as to the aforementioned extra-fiscal nature of the Export Tax, since it can only be instituted when the federal government intends to achieve objectives related to these two purposes.
In view of this, it appears that the use of IE by MP nº 1,163/23 does not meet the provisions of art. 26 from CTN; After all, the intention is not to encourage the formation of external reserves to maintain monetary control, nor to discourage the export of a certain product or to react against the conduct of a certain country or economic bloc. On the contrary. What can be extracted from MP nº 1,163/23, and its explanatory memorandum, is the existence of a typically fiscal purpose, as it only aims to cover the deficit in internal fuel tax relief.
And more: even if there were an alleged extra-fiscal purpose, this would not conform, from any angle from which the topic is analyzed, to the objectives of art. 26 of the CTN. Controlling inflation in the country (indirectly, through fuel tax relief subsidies) is not a measure of exchange rate or foreign trade policy. Likewise, claiming, as the federal government has already done, that the tax is being instituted to encourage national refining is unfounded. Now, where is the official program for building enough oil refineries to meet the immense national production? Will these four months of the tax be enough for new refineries to be created? Or, on the other hand, should companies reduce national production so that 100% of the oil extracted in the country can be refined?
The mistake in using exaction is clear. And, even though art. 153, §1, of the Constitution has authorized the Executive Branch to manage tax rates within the “limits established by law“, it must always observe the contours of the triggering event given by art. 26 of the CTN, in compliance with art. 146, III, “a”, of the Magna Carta itself. Such purposes foreseen there cannot be simply ignored by a provisional measure, as they represent the frontier of the hypothesis of incidence of the tax, so that going further would imply the approval of a complementary bill in the National Congress that changes the wording of the aforementioned CTN provision.
The situation, as can be seen, is extremely serious, especially because it goes against the Petroleum Law (Law No. 9,478/97), which sought to open the national market to private investors – in order to expand oil and gas production in the country by breaking the Petrobras monopoly -, and which directly harms the intention of producing states and municipalities to stimulate the development of the sector with a view to generating income and creating jobs lost in recent years.
The entire sector, therefore, awaits a position from the Supreme Court, which will have the final say on the issue. It is expected that the unconstitutionality of the new exaction will be recognized, in order to guarantee the stability and legal security necessary for the country's economic growth.
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