Sponsored link expenses on search platforms do not generate PIS and Cofins credits. This is the understanding of the Federal Revenue Service in Consultation Solution 43\/2023, published on March 22. This is the first time that the Revenue Service has taken a position on the subject.<\/p>\n\n\n\n
The inquiry was made by a taxpayer in the credit area who carries out his activities only online, without a physical presence. Thus, he argued that the expenses with sponsored links would be necessary to carry out his activity and would fit the thesis established by the Superior Court of Justice (STJ) in REsp 1,221,170.<\/p>\n\n\n\n
In this judgment, the STJ defined that for the purposes of crediting PIS and Cofins, inputs would be anything that is essential for the company's economic activity. The Court established the following thesis on the subject: \u201cThe concept of input must be assessed in light of the criteria of essentiality or relevance, that is, considering the indispensability or importance of a given item \u2013 good or service \u2013 for the development of the economic activity carried out by the taxpayer.\u201d<\/p>\n\n\n\n
According to the IRS, the expense with sponsored links is preparatory and not essential for the company's activity. Furthermore, not contracting the sponsored links service would not prevent the company from operating nor would it affect the quality or quantity of the service provided. Therefore, there would be no way to generate PIS and Cofins credits.<\/p>\n\n\n\n
In the Consultation Solution, the Federal Revenue Service considered that it is not possible to credit sponsored links to a company that provides services such as customer acquisition, as well as credit analysis and negotiation and definition of conditions, such as interest rates. The understanding applies \u201ceven if this [company] operates exclusively on electronic platforms\u201d, says the publication. The actions of the inspectors are linked to the understanding set forth in the Consultation Solution.<\/p>\n\n\n\n
Lesli\u00ea Mourad, a tax lawyer and partner at Schuch Advogados, believes that even though the Consultation Solution deals with the case of taxpayers and specifically companies that provide services in the preparatory stages for taking out loans, the understanding should impact all companies that work with sponsored links. \u201cThe Consultation Solution makes it very clear that it was for these [loan] companies, but this does not stop it from having a significant impact on other companies that operate exclusively in the virtual environment because the understanding will probably be similar,\u201d she said.<\/p>\n\n\n\n
Daniel Cruz, PIS\/Cofins leader at LacLaw Consultoria Tribut\u00e1ria, believes that the Federal Revenue's argument is controversial, especially in that it does not affect the quantity of the service. According to him, sponsored links \u201ceffectively\u201d impact the quantity. \u201cThe most important thing is to know that there is the STJ's position on essential expenses for the activity and there is this restriction that the Revenue has been placing that is at odds with the Superior Court,\u201d he stated.<\/p>\n\n\n\n
In the decision, the Federal Revenue Service understood that the taxpayer's request did not fit the provisions of Normative Instruction 2,121\/22, which defined inputs as goods and services considered \u201cessential or relevant\u201d for the process of production of goods or provision of services, and in Normative Opinion Cosit No. 5, which reflects the decision of the STJ, and provides for essentiality in an item on which the product or service depends \u201cintrinsically and fundamentally\u201d and relevance in an item that integrates production or the provision of the service even if not indispensable.<\/p>\n\n\n\n
For Mourad, a partner at Schuch Advogados, the expenses with sponsored links \u201care clearly inputs\u201d in the case handled by Solu\u00e7\u00e3o de Consulta. \u201cIt is a company that operates exclusively on electronic platforms, that is, it does not have a physical establishment. It captures [clients] 100% through sponsored links, so in this specific case, relevance and essentiality are characterized\u201d, she said.<\/p>\n\n\n\n