Since August 2022, with the overturning of the veto by then president Jair Bolsonaro on the sole paragraph of article 28, of Federal Law No. 14.300/2022, the distributed minigeneration projects are, in theory, eligible for the REIDI benefit.
This benefit aims to exempt infrastructure assets from PIS and Cofins social contributions, in relation to acquisitions of materials and equipment and contracting of services, including rentals and imports.
In practice, the costs of acquisitions and contracted services are reduced by the percentage due as PIS and Cofins by suppliers or importers, reaching approximately 10%, depending on the regime adopted by the supplier, whether cumulative or non-cumulative.
However, as the REIDI has a specific rite, the benefit for distributed minigeneration could not be applied automatically. The market has been waiting for the MME (Ministry of Mines and Energy) about the procedures, mainly how the publication of ordinances would be carried out to certify that the thousands of distributed minigeneration projects are eligible for REIDI.
The anguish is even greater, because as we know, numerous projects need to be connected in the coming months (depending on the deadline for the connection budget and the network works carried out by the distributor) to remain classified as “GD I”, as provided for in the Normative Resolution. ANEEL No. 1.000/2021.
Therefore, it is up to the entrepreneur to decide whether to waive the tax benefit, which burdens CAPEX, but avoids the regulatory risk of being classified as GD II; or reduce CAPEX, based on the premise that the REIDI benefit is granted within a reasonable period of time, but ends burdened by non-full compensation of the Energy Tariff and Distribution Usage Tariff for the next 25 years.
A decision is one of the most difficult, but waiving the tax benefit seems to be the most logical. But, like all good Brazilians, we want both. After all, it is a matter of right, and this choice should not even be made.
Previewing this crusade, in December 2022, the ABGD (Brazilian Association of Distributed Generation), through its patron that this article endorses, filed a collective lawsuit on behalf of its associates against the Brazil's federal revenue, for the benefit to be granted with erga omnes effect, given that distributed minigeneration projects do not require granting through a decree issued by the MME.
Although the legal battle is far from over, a swift positive decision was not made, which if granted would collectively grant thousands of distributed minigeneration projects nationwide.
Thus, it is left to distributed minigeneration entrepreneurs to seek their rights individually, who, harmed by the MME's inertia, are literally spending more money than they should on CAPEX, and the recovery of PIS and Cofins amounts retroactively becomes complex, a since the generating event for these contributions is to earn revenue, in this case, the supplier.
The first decisions are beginning to be handed down by the Courts, which, replacing the MME, have been recognizing distributed minigeneration projects to be included in REIDI, as is the case with Process No. 1058792-41.2023.4.01.3400, from the 1st Federal Civil Court of the Federal District, which will allow the taxpayer to qualify for REIDI before the Federal Revenue of Brazil.
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The opinions and information presented are those of the author and do not necessarily reflect the opinion of the Canal Solar.
