Retail companies that offer commercial bonuses or discounts in their business dealings with suppliers and wholesalers may be entitled to PIS and COFINS tax recovered.
This entitlement stems from the possibility of excluding these rebates and discounts from the PIS and COFINS tax bases, since they do not constitute revenue or sales, which are the bases for these contributions. In practice, they represent a reduction in the cost of acquiring goods. This interpretation has been under discussion in the courts, with decisions favoring taxpayers. The issue has gained prominence following its referral for adjudication under the repetitive proceedings procedure in Topic 1.412 of the Superior Court of Justice (STJ), which is expected to standardize the interpretation of this controversy.
We highlight 3 points that deserve special attention from the retail sector:
1. Nature of commercial bonuses and discounts: The STJ will determine whether commercial discounts and bonuses granted within the scope of business relationships between retailers and suppliers should be included in the PIS and COFINS tax base. The debate involves amounts granted in the context of commercial strategies, such as promotional campaigns, volume targets, product positioning, marketing initiatives, or other commercial considerations, often linked to the business performance of the operation.
2. Distinction from unconditional discounts: The controversy does not concern unconditional discounts, which are already expressly excluded from the PIS and COFINS tax bases under Laws No. 10,637/02 and 10,833/03. These discounts are those granted immediately and without any future condition or consideration by the buyer, reflected directly in the transaction price at the time the tax document is issued. The central point of the discussion lies precisely in the distinction between these legally recognized discounts and the commercial rebates and discounts negotiated between retailers and suppliers.
3. Need for Pre-established Evidence: Considering that the matter tends to be addressed through writs of mandamus, companies must maintain robust documentation to substantiate the alleged right, since this measure requires pre-established evidence and does not allow for the postponement of evidence. In this context, it will be important to demonstrate that the discounts and rebates represent an actual reduction in the cost of acquiring the goods, and not compensation for services rendered to the supplier. To this end, commercial contracts, supplier negotiation policies, invoices, rebate agreements, and consistent accounting records are key elements to support the argument in any potential legal dispute.
The relevance of this issue stems from the significant financial impact should the taxpayer’s argument be upheld by the STJ.
Therefore, retailers should act proactively and evaluate the possibility of filing a lawsuit to avoid the risk of losing the right to recover credits from prior periods, should the decision’s effects be limited to the future for taxpayers who have not filed a lawsuit.
