Export Tax on Oil Suspended by Court

What Happened to the 12% Tax on Exported Oil

Oil and gas companies obtained a preliminary injunction from the 17th Federal Court of the Federal District that suspends the collection of the 12% tax on oil exports. The decision affects all companies associated with the Brazilian Association of Oil and Gas Exploration and Production Companies (Abep).

The tax rate was originally created by Provisional Measure in March. The problem is that the PM expired without being reviewed by the National Congress. To maintain the tax, the Foreign Trade Chamber (Camex) issued a resolution recreating the tax for 60 days. In practice, the government attempted to circumvent the inaction of the Legislative with an administrative act of lower hierarchy.

Judge Diego Câmara was direct in his reasoning: using Camex to renew the effects of a PM indirectly rejected by Congress constitutes "circumvention of the due legislative process." The decision came on the same day that Camex decided to extend the collection for another 60 days, making the timing especially relevant for the market.

Why the Decision Matters for the Energy Sector and Investors

The export tax on oil is not a new discussion. In 2023, the government had already attempted to create this same tax through a PM, and oil companies also obtained injunctions suspending the taxation. That action is still awaiting final deliberation in the Federal Supreme Court.

The repeating pattern is revealing. The government creates a tax through an emergency route, Congress does not validate the measure, and the Executive seeks alternative ways to maintain revenue. This generates legal insecurity for companies in the sector, which operate with long-term planning margins and international contracts signed months in advance.

For those investing in shares of oil companies listed on the B3, such as Petrobras, PetroRecôncavo, and 3R Petroleum, the impact is twofold. The suspension of the tax improves short-term revenue prospects, but the uncertainty about the final outcome in the STF maintains a risk premium that the market prices in. As we analyzed regarding the Brazilian fiscal scenario, tax predictability is one of the factors that weighs most heavily in the allocation of foreign capital in the country.

The Legal Argument: Separation of Powers and Normative Hierarchy

The reasoning behind the injunction goes beyond the tax issue. The judge pointed out that Camex's resolution violates not only the principle of separation of powers but also "the very hierarchical structure of the Executive Power." A resolution from a collegiate body cannot replace a Provisional Measure that required parliamentary approval.

Another point raised in the decision is the nature of the tax. Companies argued that the tax has a "merely revenue-generating" purpose, which would be unconstitutional for an export tax. Under Brazilian legislation, the export tax is a tool of trade policy, not of fiscal revenue. When used solely to generate revenue, it loses its constitutional basis.

The government justified the tax citing the war in Iran and the need to fund fuel subsidies. However, this justification weakens the argument of trade policy and reinforces the oil companies' thesis that it is a disguised fiscal measure. It is a contradiction that the Justice quickly identified.

The Precedent of 2023 and What to Expect Now

The recent history does not favor the government. In 2023, the first attempt to tax oil exports was also blocked judicially. The action is still pending in the STF, without a final decision. Now, with a second suspension for similar reasons, the Executive accumulates defeats that signal a clear limit for creating taxes without legislative backing.

For the energy market, the reading is that regulatory risk remains high, but the Judiciary has functioned as a counterbalance. Companies that export crude oil, especially from the pre-salt layer, gain competitive breathing room with the suspension, as the 12% rate represented a significant bite into international operational margins.

It is worth remembering that Brazil has exported record volumes of oil in recent years, consolidating itself as one of the largest global producers. The dynamics of the commodities market already impose challenges of price and logistics. Adding a tax that is legally contested only amplifies the perception of country risk for investors in the sector.

What is the Fiscal Impact for the Government

The loss of revenue is significant. The 12% tax on oil exports was designed to generate resources that would compensate for subsidies to fuels in the domestic market, such as the containment of gasoline and diesel prices. Without this revenue, the government needs to find other sources or accept a larger deficit in this account.

In a scenario where fiscal balance is constantly questioned by the market, losing a source of revenue due to a judicial decision exposes weaknesses in the strategy for financing public policies. The National Treasury is already operating under pressure with high interest rates and growing public debt. Each lost revenue increases the challenge.

The next step is to monitor whether the government will appeal the injunction and, mainly, how the STF will position itself when judging the merits of the 2023 action. If the Supreme Court confirms the unconstitutionality of the tax, the Executive will have to seek the conventional legislative path, with a bill and debate in Congress, which is precisely the process it tried to avoid.