The Federal Revenue Services declared that amounts remitted abroad to companies of a same group, for reimbursement of expenses, shall be included in the tax basis for calculation of PIS/COFINS levied on importation
In the Query Solution 50, by COSIT, dated 5 May 2016, the Brazilian Federal Revenue Services (RFB) expressed the understanding in the sense that the Contribution to PIS/Pasep-Importation and Cofins-Importation shall levy even in cases of importation of goods and services within the ambit of cost sharing agreements, whichever its type, executed by and among companies of a same economic group.
Pursuant to RFB, the occurrence of a tax triggering event regarding said contributions does not depend on the legal nature of the transactions that entailed the importation, being it sufficient that the payment, credit, delivery, application or remittance of funds abroad correspond to the entry, into the national territory, of foreign goods, or, still, to the receipt of an utility consisting of a provision of services, either performed in Brazil or which results are verified here.
While issuing an opinion on the sharing of costs and expenses, the RFB has already recognised, in other cases, that the fact that a legal entity that centralises shared activities receives from decentralised units (all members of a same group) refund for costs it initially has borne to the benefit of the latters does not constitute revenue, rather mere reimbursement of amounts advanced.
Therefore, the amounts so received, due to the payment of usual costs and expenses, do not form the tax basis of contributions to PIS and COFINS, calculated by the centralising legal entity (Query Solution COSIT 23/2013). Such because they do not correspond to funds received to increase its net Worth (there is no animus to generate wealth or gain, there is no potential for additions to net worth).
However, in the case of remittance of funds abroad, as reimbursement under (international) cost sharing agreements, such conclusion does not apply, pursuant to recent Query Solution COSIT 50/2016, which is binding upon tax inspectors and other bodies that comprise the RFB.
In said recent Query Solution, the RFB affirms that contributions to PIS/Pasep-Importation and Cofins-Importation shall levy over importation of goods and services, within the ambit of such agreements, executed among companies of a same group, whatever their type (cost sharing, provision of services intra-group, or contribution to costs), being it irrelevant, in these cases, the legal nature of the carried out transactions (reimbursement, compensation etc.).
The rationale is that the triggering event for said contributions, pursuant to art. 3 of Law 10,865/2004, does not depend on the existence of revenues (as otherwise occurs with contributions to PIS and COFINS, set forth by Laws 10,637/2002 and 10,833/2003), but only on the entry into national territory of foreign goods, or on the existence of compensation to foreign residents for services provided.
However, in the case of services, the levy of PIS/COFINS-importation shall also depend on the examination of whether (i) the imported utility actually constitutes a provision of services (in the case of royalties paid abroad, due to trademark or patent license arrangements, for instance, shall not be subject to such levy, unless there is a services tied or if its value is individualised — Query Solution COSIT 71/2015); and (ii) the service has been performed in Brazil or its benefits have been implemented here (this shall be examined in light of the specific circumstances, considering the several query solutions of the RFB and the case law on the matter).
It is also noteworthy that the payment of PIS/COFINS-importation may, as applicable, give rise to credits for calculation of PIS and COFINS in the non-cumulative regime (particularly in view of art. 15 of Law 10,865/2014 and the rules about regularity of the cost sharing agreement).