Legislative Decree No. 02/2016, which suspended the tax benefits under the State Repetro, was judged unconstitutional by the Special Organ of the Court of Justice of Rio de Janeiro (TJ), on 02/18. Repetro is a Special Customs Regime for the operations of export and import of goods destined to activities of research and production of petroleum and is treated in Agreement ICMS nº 130/07 and in State Decree nº 41,142 / 08.

The judicial decision, although subject to appeal, assures to the Fluminense industries the right of use of the regime since the edition of the norm, legitimating, thus, all the operations done since 2016, year in which the Legislative Decree was published.

"At the time the Legislative Decree repealed the State Decree, all operations we had, especially in 2017, were adversely affected," says Otacílio Barbosa, Tax Manager of the TechnipFMC Group. According to him, with the extinction of the state Repetro, it was not possible to execute sales to customers using the ficta export. For this reason, the company filed a writ of mandamus to enable the continuity of the operation, as justified by Olivia Neves, the Group's tax lawyer. "We were the first to enter the measure."

Other companies in Rio followed the example of the TechnipFMC Group, and entities such as Abespetro and IBP filed lawsuits to guarantee exemption. At the time, Firjan also protested against the legislative measure. According to Priscila Sakalem, coordinator of the Tax and Fiscal Juridical Division of Firjan, the Legislative Decree placed the state of Rio de Janeiro at a disadvantage. "Only Rio de Janeiro had this prohibition and lost in competitiveness for other states with the regime," he points out.

Priscila points out that the decision of the JW is very important because it establishes legal certainty for companies. "Although it is still open to appeal, that decision already demonstrates the final understanding of the Court, as it appreciates the merits. The Oil & Gas (O & G) market, which involves high value-added operations, had been operating based on preliminary decisions. The decision leaves Rio's industries in a position to compete with their competitors, "he points out.