Drawback is the special customs regime that relieves the tax burden on the inputs used in the manufacture of a product destined for export. Its rationale is the prevailing rule in international trade that taxes are not exported: the input that leaves the country incorporated into an exported good should not carry the domestic tax burden in its price, otherwise the domestic product would arrive at its destination at a disadvantage. The provision is set out in Article 78 of Decree-Law No. 37/1966, and the rules are divided between the Customs Regulation, approved by Decree No. 6,759/2009, and the regulations of the Secretariat of Foreign Trade and of the Brazilian Federal Revenue Service.
The regime comprises three modalities. Under suspension, the taxes cease to be collected at the moment of the importation or of the domestic acquisition of the input, and their collection is made conditional on the fulfillment of the commitment to export. Under exemption, the export has already taken place with taxed inputs, and the regime allows the replenishment of inventory with equivalent relief. Under restitution, the taxes paid upon importation are refunded after the export has been carried out, a modality that is practically unused today. Suspension, governed by Article 12 of Law No. 11,945/2009, is the most widely used and also encompasses atypical regimes, such as the one for vessels and the one for supply in the domestic market through international bidding. Exemption has its core in Law No. 12,350/2010.
Under the suspension modality, the Import Tax, the IPI (Industrialized Products Tax), the PIS/Pasep Contribution, Cofins and the corresponding contributions levied upon importation are suspended, with relief also extending to the additional tax on freight for the renewal of the merchant marine. Once the commitment to export is fulfilled, the suspension converts into definitive relief. If the commitment is breached, the taxes become collectible again, and it is from this point that most of the disputes involving the regime arise.
The scope of the suspension was expanded in 2025. Complementary Law No. 216, in force since July 29 of that year, inserted Article 12-A into Law No. 11,945/2009 and extended the suspension of the PIS/Pasep-Importação Contribution and of Cofins-Importação to services exclusively linked to the export of products covered by the regime, among them brokerage and cargo insurance, customs clearance, storage, cargo transportation, handling and unitization, container leasing, and installation, assembly, education and training services. SECEX Ordinance No. 418, published on the same date, regulated the procedure and included as an annex the exhaustive list of the services covered, identified by the Brazilian Nomenclature of Services, which means that a service not listed in the annex remains outside the suspension even if it is linked to the transaction.
Access to the regime requires the authorization of the company, tax compliance in good standing, and the registration of the concessory act in Siscomex, with the description of the goods to be imported, of the goods to be exported, and of the quantitative relationship between them. This relationship, known as the linking ratio, is the core of the regime and the origin of a large part of the tax assessments, because the tax authorities compare what was acquired with what was actually incorporated into the exported product. Errors in the technical coefficient, inventory surpluses, and the substitution of inputs for others of a different specification produce partial default even if the export took place.
The authorization requirements and the instances of fulfillment of the commitment are set out in Joint SECINT/RFB Ordinance No. 76 of September 2022, which broadened the list by admitting, among other situations, importation on behalf of a third party, deemed export, export on behalf of third parties, the transfer of ownership in mergers, acquisitions and spin-offs, toll manufacturing, and the participation of companies that have opted for Simples Nacional. The operational rules governing the concessory act are contained in SECEX Ordinance No. 44 of July 24, 2020, with its subsequent amendments.
The concessory act is valid for one year. Article 19 of SECEX Ordinance No. 44/2020 allows a single extension for an equal period, provided that it is requested in Siscomex by the last day of the original term, so that an untimely request admits of no later correction. For capital goods with a long manufacturing cycle, Article 20 allows one or more extensions, for periods compatible with the manufacture and export of the good, up to the limit of five years.
Once the operations are completed, it is up to the beneficiary to request the closure of the concessory act. Article 40 of the same ordinance establishes that, if the request is not filed within sixty days of the expiration of the term of validity, the closure will take place ex officio, in which case the beneficiary loses the opportunity to submit the elements capable of demonstrating compliance. Before that, Article 39 sets a deadline of thirty days, counted from the end of the term of validity, for the adoption of the so-called incidents, which are the measures intended to regularize the goods not exported.
The commitment admits forms of fulfillment beyond export. Article 37 allows the return of the goods abroad, their destruction under customs control, their allocation to domestic consumption with payment of the suspended taxes, their delivery to the National Treasury and their transfer to another customs or tax regime. Each of these alternatives has its own cost and deadline, and the choice must be made within the thirty-day window, which requires that the decision on the remaining inputs be taken before the term of validity expires.
In the absence of any of these measures, default is established, which Article 45 classifies as total, when no export was carried out, or partial, when the exports fell short of the commitment assumed. The consequence is the payment of the suspended taxes relating to the goods not exported, plus interest counted from the registration of the import declaration, since the taxable event was completed on that date and the suspension merely deferred the collection.
The late-payment penalty follows a different logic, and the matter was settled by the First Section of the Superior Court of Justice (STJ) in the judgment of divergence appeals (embargos de divergência) in Special Appeal No. 1,580,304, reported by Justice Sérgio Kukina and concluded on September 30, 2021. It was held that the taxpayer who pays the taxes within the thirty days following the expiration of the export deadline is not in arrears, so that the late-payment penalty only applies from the thirty-first day of the default. The distinction between the starting date of the interest, which is the date of registration of the importation, and the starting date of the penalty, which is the thirty-first day, often goes unnoticed in tax assessments and deserves checking in every infringement notice.
When the regularization does not originate with the beneficiary and the demand arises from a tax audit procedure, the ex officio penalty of seventy-five percent provided for in Article 44, item I, of Law No. 9,430/1996 applies, a percentage considerably higher than that of the late-payment penalty. The taxpayer’s own initiative, even if late, therefore produces a significant economic effect.
The regime is undergoing a relevant change with the reform of consumption taxation. Complementary Law No. 214/2025 and Decree No. 12,955/2026, which regulates the Contribution on Goods and Services, extended to drawback the suspension of the CBS levied upon importation, and the enjoyment of the benefit with regard to the new tax and the new contribution will now also depend on authorization before the Managing Committee of the Tax on Goods and Services, in the form of CGIBS Resolution No. 6/2026. The provisions on special customs regimes take full effect from 2027, a circumstance that recommends designing from now on, with attention to the dual authorization, the concessory acts whose term of validity extends beyond that milestone.
The deadlines of the regime run from the expiration of the term of validity of the concessory act, regardless of any notice. An extension requested out of time cannot be recovered, the thirty days allotted to the incidents are not suspended, and the ex officio closure after sixty days closes the administrative path for proving compliance.
