The opinion acknowledges that decree-based limitations on the PAT (Worker's Food Program) should not prevail; the law guarantees companies the right to a tax deduction
On August 20, 2025, the Office of the Attorney General of the National Treasury (PGFN) issued Legal Opinion SEI No. 1506/2024/MF, acknowledging that the restrictions imposed by Decree No. 10,854/2021 on the Workers' Food Program (PAT) should not prevail.
The PAT, established under Law No. 6,321/1976, is a federal public policy aimed at improving workers' nutritional conditions. The statute grants companies that adhere to the program the right to deduct, on a double basis, the expenses incurred under the PAT from their taxable income, subject to a cap of 4% of the corporate income tax (IRPJ) due for the respective period.
The Brazilian Federal Revenue, however, which is not bound by such opinions, maintains its historical position that such deduction applies only to the standard 15% corporate income tax rate, excluding the additional 10% surtax levied on profits exceeding the legal threshold.
Moreover, Decree No. 10,854/2021 imposed further limitations by: (i) restricting the benefit to employees earning up to five times the minimum wage; and (ii) capping the deductible amount to the equivalent of one minimum wage per employee.
Nevertheless, the Superior Court of Justice (STJ) has consolidated jurisprudence favorable to the taxpayers, holding that such limitations are unlawful (both with respect to the exclusion of the 10% IRPJ surtax from the scope of the deduction and the restrictions introduced by Decree No. 10,854/2021).
Regarding the IRPJ surtax, the PGFN had already recognized STJ's prevailing position and issued Legal Opinion SEI No. 268/2023/ME, waiving the public attorneys´ requirement to contest or appeal in judicial proceedings on the matter.
Now, through the issuance of Legal Opinion SEI No. 1506/2024/MF, PGFN has extended this waiver to disputes involving the limitations introduced by Decree No. 10,854/2021.
Although these opinions constitute persuasive argument in favor of the taxpayers, the Brazilian Federal Revenue is not legally bound to them and continues to uphold its restrictive interpretation. Accordingly, taxpayers should consider the convenience of filing individual lawsuits to seek judicial relief from the aforementioned limitations, particularly in view of the high likelihood of success based on established case law.
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