Decree 11,374/23, published on  January 2^nd of this year, revoked the Decree 11,321/22, of December 30, 2022, which had established a 50% discount for the rates of the Additional Freight for the Renewal of the Merchant Navy (AFRMM) specifically for the triggering  events that occurred as of January 1, 2023.

Therefore, the tax burden of AFRMM returned to the amounts in force before January 1st, 2023.

The AFRMM rates with and without the discount are detailed below:

The repeal of the discount on the AFRMM rates was so fast that the Brazilian Internal Revenue Service itself did not even update its systems to contemplate the reduced rates.

Although Decree 11.374/23 provides for the applicability on the date of its publication, there are good legal grounds to discuss the immediate imposition of the tax burden without the discount, as to the fact that  Decree 11.321/22 came into force and produced effects in the legal system, even if for a short period of one day.

Legally, given that the repeal of Decree 11.321/22 effectively led to an increase of AFRMM rates, it is possible to argue that the constitutional principle of annual and nonagesimal anteriority must be observed, which prevents the collection of taxes in the same financial year and before the course of 90 days counted from the rule that increased the tax (art. 150,  paragraphs "b" and "c"):

Art. 150. Without prejudice to other guarantees of the taxpayer, it is not allowed to the Federal Union, the States, the Federal District and the Municipalities: (...)

III - collect taxes: (...)

(b) in the same financial year in which the law establishing or increased them has been published;

(c) before ninety days since the date on which the law that established or increased the tax has been published, in accordance with item(b);

The jurisprudence of the Supreme Federal Court (STF) has long definedthe legal nature of AFRMM as a Contribution of Intervention in the Economic Domain (CIDE), according to Resp 177137/RS .

CONSTITUTIONAL. TAX. ADDITIONAL FREIGHT FOR RENEWAL OF THE MERCHANT NAVY - SECTION 155, § 2, ADCT, section36.

I. - THE ADDITIONAL FREIGHT FOR RENEWAL OF THE MERCHANT NAVY - AFRMM - is a parafiscal or special contribution, contribution of intervention in the economic domain, third tax genre, distinct from taxes (cf., art. 149)

II. – The AFRMM is not incompatible with the rule of section 155, §2, IX, of the Constitution. Irrelevance, under the tax aspect, extinct,accoding to section 36, ADCT.

III. - R.E. not accepted.

(Resp 177137/RS, Rel. Ministro LUIZ FUX, FIRST SECTION, judged on 08/09/2010, Dje 18/04/1997, griffin)

Given that CIDEs, as a rule, are subject to double anteriority (annual and nonagesimal),^[1] there are good legal grounds to defend the applicability of the reduced rates of AFRMM throughout the year 2023, with the possibility of reestablishing its rates only as of January 1, 2024.

Machado Meyer's Tax Department is available to clarify doubts and discussions on the subject.

^[1] Exception made to CIDE-Fuels, which is subject only to nonagesimal anteriority (section177, §4°, item I, point "b" of the Federal Constitution).