The 3rd Panel of the Superior Chamber of the Administrative Council for Tax Appeals (Carf) granted the appeal filed by taxpayer Bompre\u00e7o Supermercados do Nordeste, ruling out the levy of PIS and Cofins on discounts obtained on the purchase of goods. The case is number 10480.722794\/2015-59.<\/p>\n\n\n\n
The prevailing understanding was that discounts and bonuses are not considered revenue and therefore do not apply to contributions. The decision, which resulted in a tiebreaker in favor of the taxpayer, represents a change in the panel's case law on the subject.<\/p>\n\n\n\n
By a vote of 6 to 4, the councilors also allowed the taking of PIS and Cofins credits on freight expenses for the transfer of finished products between establishments of the same economic group. However, they unanimously maintained the incidence of interest on arrears on official fines, applying Carf Summary 108.<\/p>\n\n\n\n
Attorney Maria Conc\u00edlia de Arag\u00e3o Bastos, representing the National Treasury Attorney General's Office (PGFN), argued in oral arguments that the discounts on products purchased by the supermarket would, in fact, be considered revenue.<\/p>\n\n\n\n
\u201cThe value of the discounts is equivalent to a profit earned by the taxpayer in the exploration of his\/her economic activity. Even though the resource has not physically entered the coffers, there is no denying that there is a credit\u201d, said the prosecutor.<\/p>\n\n\n\n
She also stated that only unconditional discounts are considered to be reductions in the sales price and not revenue. However, to be considered an unconditional discount, the taxpayer would need to include the discount on the invoice, which did not occur in this specific case.<\/p>\n\n\n\n
However, lawyer Ivo de Oliveira Lima, representing the taxpayer, cited the definition expressed in the judgment of extraordinary appeal (RE) 606.107, which considers revenue for the purposes of determining the PIS and Cofins calculation basis to be the financial entry as a new and positive element forming part of the assets.<\/p>\n\n\n\n
\u201c[With the discounts] we don\u2019t have an income, because not paying is not the same thing as receiving an amount. I don\u2019t have a new element, but a heritage that already existed and stopped coming out,\u201d he argued.<\/p>\n\n\n\n
The defense attorney also said that, since in this specific case the discounts are not linked to the sale, but to the acquisition of goods, there would be no room for discussion as to whether they are conditional or unconditional. \u201cThe circumstance of whether it is conditional or unconditional is relevant for the seller. For the purchaser, it is important to know whether the discount is revenue or not,\u201d he stated.<\/p>\n\n\n\n
The rapporteur, counselor Valcir Gassen, denied the taxpayer's appeal regarding the discounts, as he understood that they are of a revenue nature, but allowed the use of PIS and Cofins credits on the freight of products between establishments in the same group.<\/p>\n\n\n\n
Divergence<\/p>\n\n\n\n
There were two dissenting votes in relation to Gassen's understanding. Councilor Rosaldo Trevisan opened a dissenting opinion to deny the appeal on both matters. Councilor Tatiana Midori Migiyama dissented to grant the appeal both in the case of the exclusion of contributions on discounts and in the case of the use of credit on freight.<\/p>\n\n\n\n
\u201cIt is not a sale of goods. There is no need to talk about accounting for revenue. The only account that would be measured and recorded is the acquisition cost. [Therefore, the discount] would reduce the acquisition cost,\u201d argued the counselor.<\/p>\n\n\n\n
According to the judge, although Normative Instruction (IN) 51\/78, of the Federal Revenue Service, determines that the unconditional discount must be highlighted on the invoice, the Superior Court of Justice (STJ) understood, in the judgment of AREsp 556050, that the incorrect or incomplete filling of the invoices does not prevent the recognition of the discounts. The counselor also cited Consultation Solution 130\/2012 of the 8th Tax Region, which, according to her, does not link the recognition of the discount to the filling of the invoice.<\/p>\n\n\n\n
As there was a tie in the support for the divergent theses, the chairman of the panel, Carlos Henrique de Oliveira, applied the pro-taxpayer tiebreaker rule. In the case of credits on freight expenses between establishments in the same economic group, the majority of the councilors understood that it was possible to use the PIS and Cofins credits.<\/p>\n\n\n\n