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 – Leal Cotrim Jansen Advogados

Leal Cotrim Jansen Advogados

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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).

Privacy Policy

Leal Cotrim Jansen Advogados (“Leal Cotrim”) is firmly committed to respecting the privacy of its members, clients and all individuals whose personal data we collect, store or process in any other way. Any information relating to an identified or identifiable natural person is personal data.

This Privacy Policy guides the processing of personal data by Leal Cotrim and disciplines the exercise of the rights of the individuals whose personal data are processed by Leal Cotrim and/or on behalf of Leal Cotrim. We kindly ask that you read it carefully before providing us with your personal data and every time you wish to know how we use your personal data.

1. How we process your personal data

All processing operations carried out by Leal Cotrim are compliant with the applicable laws, especially Law 13,709/2018 (“Lei Geral de Proteção de Dados”) and Law 8,906/1994 (“Estatuto da Advocacia”).

We only processes your personal data under the following legal basis:

(i) under your consent;
(ii) for compliance with a legal or regulatory obligation;
(iii) for the performance of a contract for the provision of legal services or in order to take related steps prior to entering in such a contract;
(iv) for the regular exercise of rights within a judicial lawsuit, na administrative or arbitral procedure; and
(v) for the purposes of the legitimate interests pursued by Leal Cotrim, except where such interests are overridden by your fundamental rights and freedoms which require protection of your personal data.

Visiting and browsing our website are anonymous. Regarding the use of our website, we only collect the personal data that are provided by you when you use the contact tool available on our website, under your explicit consent.

For your privacy to be preserved, if you forward you personal data to Leal Cotrim in order to be considered for one of our vacancies, they will be securely erased immediately after the recruitment process ends.

In any case, Leal Cotrim only processes the personal data that are necessary to achieve the purpose of the processing, and for the period that is necessary to do so.

2. How we protect you personal data

Leal Cotrim adopts technical and administrative measures to protect your personal data from unauthorized access and from non-intentional or unlawful destruction, loss, modification, communication and dissemination. However, any security incident involving your personal data that may cause you significant risk or harm will be communicated to you and to the National Data Protection Authority – ANPD within a reasonable time.

3. Your rights as data subject

As a data subject, you have the following rights, subject to the provisions of article 7, II, of Law 8,906/94 and article 7, VI, of Law 13,709/2018:

(i) confirmation as to whether your personal data are being processed;
(ii) access to your personal data;
(iii) rectification of your personal data that are incomplete, inaccurate or outdated;
(iv) anonymisation, restriction of processing, or erasure of your personal data that are unnecessary, excessive, or processed in non-compliance with the provisions of the applicable law;
(v) portability of your personal data for the use of another services provider, in accordance with the regulations issued by the National Data Protection Authority – ANPD, subject to the protection of commercial and industrial secrets;
(vi) erasure of your personal data, except in the cases provided for in the applicable law;
(vii) information about public and private entities with which we share your personal data;
(viii) information about the possibility of not providing your consent for the processing of personal data and about the consequences of the refusal;
(ix) withdrawal of your consent, subject to the public interest that may justify the processing to continue or the existence of another legal basis that authorizes it; and
(x) opposition to any processing of personal data based on one of the legal basis that do not require consent, provided that there has been a breach of the applicable law, and subject to the public interest that may justify the processing to continue.

4. How you can exercise your rights

At any time, you can exercise your rights as a data subject by sending a request to encarregado@lealcotrim.com.br. Following confirmation of your identity, your request shall be answered within the legal term or, in the absence of a legal term, within a reasonable period.

If you receive our institutional newsletters and no longer wish to receive them, you can also unsubscribe through the link that we provide in every newsletter.

5. Changes to this privacy policy

This Privacy policy was drafted in accordance with the current laws and may be modified to better suit the applicable laws and regulations. Any changes to this Privacy Policy will be effective as of the date indicated below.

01 December 2020