Provisional Presidential Decree (MP) No. 794, of August 9, 2017, revoked Provisional Presidential Decrees Nos. 772, 773, and 774, all of March of this year. The latter dealt with, among other issues, the repeal of paragraph 21 of article 8 of Law No. 10,865/2004, which required the collection of an additional 1% on Cofins (Contribution to Social Security Financing) to import certain products, such as articles of clothing, aeronautical goods, medicines, among others.
When MP 774/2017 was published, the additional 1% on Cofins was no longer charged to importers in the cases listed. However, because it was not converted into law by August 10, 2017, the provisional presidential decree would automatically expire (pursuant to paragraph 3 of Article 62 of the Federal Constitution). Before that, however, the President of Brazil opted to expressly revoke it, by sanctioning a new provisional presidential decree, MP 794/2017.
As stated in the explanatory memorandum of the new MP, the repeal of the previous provisional measures had the purpose of unlocking the agenda of the National Congress, especially that of the Chamber of Deputies, in order to vote on proposals considered more important for "continuation of the resumption of the economic growth and structural reforms that Brazil needs."
Despite the political situation surrounding the matter, MP 794/2017 only had express provisions on its entry into force when published, but did not discuss any collection, once again, of the additional 1% on Cofins-Import, under the terms of paragraph 21 of article 8 of Law No. 10,865/2004 (revoked by MP 774/2017).
Despite this, since August 10 (the day after the enactment of MP 794/2017), the Brazilian Federal Revenue Service (RFB) parameterized its systems to require the Cofins-Import surcharge on imports of the products referred in Law No. 10,865/2004.
However, it is possible to argue that the revocation of MP 774/2017 by MP 794/2017 could not result in the immediate reinstatement of the surcharge of 1% on Cofins-Import, under penalty of reprisal of paragraph 21 of article 8 of Law No. 10,865/2004, which is forbidden in the Brazilian legal system pursuant to paragraph 3 of article 2 of the Law Introducing the Norms of Brazilian Law (LINDB). That is, in the current legal system, there is no valid rule foreseeing the collection of the 1% Cofins surcharge on the importation of products.
In addition, there are also grounds for maintaining that the resumption of the requirement of the Cofins-Import surcharge should at least respect the 90-day waiting period for entrance into effect, as provided for in article 195, paragraph 6, of the Federal Constitution.
Thus, there are good reasons to avoid collecting the 1% Cofins surcharge until new legislation formally reintroduces this obligation into the Brazilian legal system, or to argue that such a requirement could only have been made 90 days after the publication of MP 794/2017.