In June 2026, the Ministry of Finance released the new Tax Exemption Characterization Panel, compiling detailed information on tax incentives declared by taxpayers through the Declaration of Incentives, Waivers, Benefits and Tax Immunities (DIRBI). The initiative aims to verify whether tax exemption mechanisms effectively contribute to reducing regional socioeconomic inequalities, identifying their impacts, the main sectors benefited, and the regional distribution of these incentives.

More than revealing the regional concentration of these benefits, however, the panel reignites another equally relevant discussion: how will the compensation for ICMS incentives be affected during the transition to the new tax system, and what will be the practical requirements for taxpayers to access this mechanism?

In this context, the ICMS Tax or Financial-Tax Benefit Compensation Fund (FCBF), created by Constitutional Amendment No. 132/2023 and regulated by Complementary Law No. 214/2025, stands out. This Fund was conceived as an instrument intended to compensate, with resources from the Union, the gradual loss of ICMS tax benefits resulting from the implementation of the IBS (Integrated Sales Tax), between 2029 and 2032, with an initial allocation of R$ 160 billion, updated by the IPCA (Broad Consumer Price Index). At the end of this period, any remaining financial balance of the FCBF, after the provisions foreseen in Complementary Law No. 214/2025, will be transferred to the National Regional Development Fund (FNDR).

Although the FCBF was conceived precisely to compensate for the gradual loss of ICMS tax benefits, access to its resources is far from automatic. Brazilian Federal Revenue Service Ordinance No. 635/2025 detailed the criteria, requirements, and procedure for taxpayers to qualify for the Fund, establishing that the application must be submitted to the Federal Revenue Service between June 1, 2026 and December 31, 2028, for each benefit granted individually. The taxpayer is responsible for demonstrating, from the outset, that they meet the requirements stipulated in the regulations.

Only the so-called “onerous benefits”—those granted for a fixed term and under specific conditions, requiring contributions from taxpayers—regularly granted up to December 31, 2023, are eligible (extensions, renewals, and migrations are permitted under specific conditions). The following remain excluded: benefits related to (i) commercial activity, (ii) interstate operations with unprocessed agricultural products, and (iii) port and airport activities linked to international trade, and (iv) the Manaus Free Trade Zone and Free Trade Areas.

This article does not intend to question the data presented by the Tax Exemption Characterization Panel, nor deny the persistence of regional inequalities or the concentration of tax incentives in the Southeast and South regions (which, together, already concentrate the majority of tax exemptions). The concern lies elsewhere: the possibility that the FCBF regulation will transfer to taxpayers the burden of bearing limitations inherent in the fiscal public policies themselves, conditioning access to the Fund on meeting requirements that raise doubts about their compatibility with the regime established by Constitutional Amendment No. 132/2023 and Complementary Law No. 214/2025.

It is precisely in this context that RFB Ordinance No. 635/2025 gains relevance. In regulating the FCBF, the Ordinance shifted the concept of “onerous benefit” to one that is subject to “demonstration of the economic impact suffered,” now requiring proof of the effect of this increase in assets. This is not to deny that economic impact is already provided for in Complementary Law No. 214/2025 itself. The criticism falls on the way the administrative regulation delimited this concept, restricting, in practice, the universe of benefits eligible for compensation.

Hence the first weakness. Not every consideration assumed by the taxpayer can be translated into a negative financial impact on assets and may sometimes consist of obligations with real burdens. By requiring that the economic impact be demonstrated exclusively under a specific economic parameter, the regulation ends up restricting a hypothesis that does not arise, at least not expressly, from Constitutional Amendment No. 132/2023, Article 128 of the ADCT, or Complementary Law No. 214/2025 itself.

To make matters worse, the taxpayer will have to prove the economic impact resulting from the loss of the ICMS tax benefit, especially by demonstrating the compression of their business margin. In practice, compensation through the FCBF becomes dependent on this demonstration, making the periodic quantification of the economic effects of the withdrawal of the benefit essential for qualification purposes before the Federal Revenue Service.

This concern gains greater relevance in light of the data presented by the Tax Exemption Characterization Panel. Even though the Ministry of Finance has identified limitations in the effectiveness of tax incentives as an instrument for reducing regional inequalities, this finding does not authorize the FCBF regulation to impose more burdensome requirements on taxpayers for access to the compensatory mechanism established by the Tax Reform itself. In other words, any insufficiency of fiscal public policies cannot be compensated for by restricting rights guaranteed by the legislator.

Therefore, we understand that the application of RFB Ordinance No. 635/2025 may raise questions from taxpayers, especially if an excessively restrictive interpretation of the FCBF eligibility requirements prevails. Although the deadline for submitting applications extends until 2028, it is advisable that companies begin, now, to evaluate their tax benefits and the necessary documentation to demonstrate compliance with the criteria required by the Federal Revenue Service. More than a compliance measure, this diagnosis will allow taxpayers to be prepared for any eventual discussion regarding the limits of administrative regulations and their compatibility with the legal regime established by the Tax Reform.