By Marcelo Blecher

The 1st Panel of the Superior Court of Justice (“STJ”) ruled, in the Special Appeal (“REsp”) 1.679.681/SC, that the sale of goods destined for the Manuas Free Trade Zone (“ZFM”) is equivalent to the export of Brazilian products abroad, for tax purposes. Based on this understanding, the taxpayer that carries out a sale of manufactured products to the ZFM is entitled to the tax benefit established by the Special Regime for Reintegration of Tax Amounts for Exporting Companies (“Reintegra”) – a tax incentive established by Law 12.546/2011 to relieve the exporter that produces manufactured goods.

The National Treasury alleged in its special appeal that Reintegra would be a type of government subsidy to exporters, with the objective of offering tax benefits to this specific sector of the economy. Therefore, for the Union, the automatic extension of the program's benefit to revenues from sales made to the Manaus Free Trade Zone would violate art. 150, § 6, of the Federal Constitution (“CF”), which prohibits the granting of subsidies or exemptions without a specific law.

According to the vote of the Rapporteur, Min. Regina Helena Costa, the ZFM model was designed in 1967 with the purpose of providing an environment suitable for development in the interior of the Amazon, with an initial validity of 30 (thirty) years. However, after successive renewals, the National Congress, through EC 83/2014, extended its tax incentives until 2073.

The Rapporteur also highlighted that the ZFM has been maintained with the characteristics of a free trade area, for export and import, and for tax incentives, which is why the export of goods of national origin for consumption or industrialization in this region must be considered, for all tax purposes, equivalent to a Brazilian export abroad.

The understanding of the First Panel of the STJ was established, by majority vote, when upholding the ruling of the Federal Regional Court (“TRF”) of the 4th Region which decided that sales revenues for the ZFM and for free trade areas, as they are equivalent to the values obtained in exports, should compose the calculation basis of Reintegra –

The Mazzucco & Mello Advogados tax team is available to provide any clarification on this topic.