Taxpayers have obtained a ruling from the Administrative Council of Tax Appeals (Carf) against the taxation of bonuses \u2013 extra goods given to merchants by suppliers. The ruling is noteworthy for going against the majority jurisprudence in the administrative sphere and for being made at a time when the Judiciary may decide the matter. The 1st Section of the Superior Court of Justice (STJ) has scheduled the analysis of the issue for today.<\/p>\n\n\n\n
The decision at CARF (Administrative Council of Tax Appeals) benefits the Zona Sul supermarket in Rio de Janeiro. The 1st Panel of the 1st Chamber of the 3rd Section dismissed a charge of PIS and Cofins (social security contributions) on bonuses. The assessment refers to the year 2012 and points out that the revenues resulting from bonuses granted by suppliers were not included in the calculation base of the social contributions.<\/p>\n\n\n\n
In the lawsuit, the supermarket claims that these were price agreements made between them and their suppliers. Instead of providing discounts on unit prices, they claim they granted goods as bonuses. According to the taxpayer, this operation is known as a "dozen of thirteen," in which the bonus value ends up reducing the unit cost of each product received, generating no revenue.<\/p>\n\n\n\n
According to the tax authorities, the supermarket "chose" to consider the bonus revenue as "reductions in sales costs," following a common practice in retail, "even though this is not supported by PIS and Cofins legislation," as stated in the administrative process. The tax authorities expressed the understanding that the "bonuses" in merchandise received by the appellant represent taxable revenue, since their true nature would be that of donations.<\/p>\n\n\n\n
However, in his vote, the rapporteur, Councilor Matheus Schwertner Ziccarelli Rodrigues, states that, with regard to discounts and bonuses, the economic advantage of the buyer, established in commercial agreements, "can never be considered revenue," because the buyer always makes a payment and does not generate revenue that results in an increase in their net worth.<\/p>\n\n\n\n
According to Rodrigues, although the concept of revenue, for the purposes of PIS and Cofins taxation, also includes reductions in liabilities that result in an increase in net worth, discounts or bonuses do not represent a decrease in liabilities, but rather a reduction in the acquisition costs themselves.<\/p>\n\n\n\n
\u201c"Whatever renegotiations or discounts are practiced between suppliers and retailers, they do not represent revenue for the latter, since whoever buys products incurs an expense (cost), never revenue," he states in his vote. The rapporteur voted to cancel the fines.<\/p>\n\n\n\n
According to the advisor, specifically regarding bonuses, the supplier delivering "merchandise as a bonus" is not earning any "additional revenue," nor is it making a "donation." The company receiving the bonus merchandise has "zero cost," a benefit that cannot be converted into "revenue" upon entry, since the revenue will be earned upon exit, when the merchandise is destined for sale. The vote was followed by the majority.<\/p>\n\n\n\n
In a statement, the Attorney General's Office for the National Treasury (PGFN) points out that the inclusion of bonuses in the calculation base for PIS and Cofins is a consolidated matter in the CARF (Administrative Council of Tax Appeals). "Several rulings from the Superior Chamber of Tax Appeals reiterate that, in the non-cumulative modality, the calculation base encompasses all revenues earned by the legal entity, with only exclusions expressly provided for by law being permitted," it says.<\/p>\n\n\n\n
Regarding the specific case, the PGFN informs that the decision will be submitted to technical analysis and, if it diverges from the prevailing administrative jurisprudence, it may be subject to appeal (process no. 16682.721177\/2013-84).<\/p>\n\n\n\n
The understanding is consolidated in the CARF (Administrative Council of Tax Appeals), but it still divides the STJ (Superior Court of Justice). The 2nd Panel is unfavorable to taxpayers. The 1st Panel is favorable. Today, the 1st Section may define whether bonuses and discounts are included in the calculation basis for PIS and COFINS in a repetitive judgment (Topic 1412). There are 1,026 cases on the subject, 82 of which are in the STJ, according to data from the Court.<\/p>\n\n\n\n
The ruling is important because decisions by the Supreme Federal Court (STF) have already indicated that the discussion is infra-constitutional and, therefore, should be decided by the Superior Court of Justice (STJ), according to Leandro Genaro of MLGE Advogados. He argues that merchandise given as a bonus is not revenue or turnover for the company. "Taxation will normally occur when the merchandise is sold, as it entered the market at zero cost, thus preventing the crediting of PIS and Cofins taxes."\u201c<\/p>\n\n\n\n
The tax expert points out that there was much discussion about including bonuses in the ICMS (Brazilian state sales tax) base, and it was settled that there is no tax incidence in the case of unconditional discounts. In the case of conditional discounts, it is taxed. This understanding is stated in STJ (Superior Court of Justice) Precedent 457.<\/p>\n\n\n\n
According to lawyer Maur\u00edcio Faro, partner at BMA, the discussion is not new in the administrative sphere, nor in the Judiciary, but a favorable decision in the CARF (Administrative Council of Tax Appeals) is noteworthy. "Normally, they are unfavorable due to a tie-breaking vote," he says. <\/p>\n\n\n\n
The lawyer, who is also acting in the case before the Superior Court of Justice (STJ) on behalf of an interested party (amicus curiae), argues that bonuses, discounts, and cost reductions are not revenue, but rather margin recovery. "It is not revenue resulting from retail sales consideration," he states.<\/p>\n\n\n\n
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