[WTO Case Review Series No.29] Brazil – Certain Measures Concerning Taxation and Charges (DS472, DS497): Scope of the WTO law on Discriminatory Tax Exemption Measures

In this dispute, the WTO-consistency of certain tax measures adopted by Brazil through various programs aimed at the ICT and automotive sectors as well as export promotion are at issue. Main aspects of the measures at issue include that, in order to benefit from the tax treatment, companies must obtain an accreditation in accordance with the programs, which requires: (a) to produce the goods in compliance with the relevant Basic Productive Processes (PPBs) for the ICT sector and the automotive sector, or (b) gross revenue derived from exports to exceed 50% of its total gross revenue.

The Appellate Body agreed with the Panel's finding on inconsistency with Article III:2 and III:4 of the GATT 1994, whereas the separate opinion of one Appellate Body Member on Article III:8(b) was presented. As to interpretation of the provisions of the SCM Agreement, the Appellate Body reversed the Panel's finding on two legal issues: (i) the normative benchmark of "revenue forgone" requirement in Art. 1.1(a)(1)(ii), and (ii) application of "contingency" requirement in Art. 3.1(b).

When the measures at issue are those internal tax exemptions/reductions created in order to protect national industries or foster exports, which include complicated combinations of accreditation systems and PPBs, the panel and the Appellate Body face difficulties in applying WTO subsidy regulations. This case shows a certain limitation in applying the WTO rules to Members' tax measures.