The tax treatment of cooperatives may undergo a major shift at the Federal Supreme Court (STF), with the potential for a multi-billion-dollar impact on the sector. The STF will rule on the possibility of excluding CSLL, PIS, and COFINS from the tax base for transactions conducted by cooperatives with non-member third parties, General Repercussion Case nº. 536.
The virtual hearing had already secured 9 votes, 5 of which were in favor of the cooperatives. However, the case was referred for a physical plenary hearing. As a result, the review will restart, with only the vote of the Reporting Justice, who opposed the position defended by the cooperatives, being retained.
3 points deserve attention regarding this issue:
1. Scope of the argument: The argument concerns the exclusion of CSLL, PIS, and COFINS from the tax base for revenues arising from transactions conducted by cooperatives with non-member third parties. Also under review is the distinction between typical cooperative activities and transactions conducted with third parties.
2. Possible Outcomes of the Ruling:
(i) The Reporting Judge’s Position (unfavorable to cooperatives): Permits taxation of transactions conducted with non-member third parties, even if the proceeds are passed on to the cooperative members.
(ii) Position favorable to cooperatives: Exempts from taxation the value of services provided by cooperative members to third parties. In this scenario, taxation applies to the cooperative member when it is a legal entity, but does not apply when the cooperative member is an individual.
(iii) Intermediate Position: Permits taxation on transactions with non-member third parties, except when the cooperative acts exclusively as an intermediary between the member and the service recipient.
3. Strategies for Cooperatives: For cooperatives that already exclude or utilize credits through administrative channels, there is a significant risk of a reversal of the current interpretation, potentially requiring retroactive adjustments and resulting in financial impacts. This risk is amplified precisely by the existence of divergent positions in the ruling, which reinforces the uncertainty regarding the final outcome. For cooperatives that have not yet filed a lawsuit, filing a lawsuit becomes a relevant measure, especially given the possibility that the STF may modify the effects of the decision, which could limit the recovery of amounts paid or preclude retroactive effects. The case before the Federal Supreme Court remains pending, with a high degree of uncertainty regarding the outcome.
The differing legal opinions indicate that the issue has not yet been settled, reinforcing the need for caution on the part of cooperatives. The issue involves a potential impact in the billions on public coffers, which could influence the outcome and any subsequent adjustment of effects, with significant implications for taxpayers.
In this scenario, monitoring the ruling is essential, both for cooperatives that have already adopted strategies for exclusion or administrative recovery of amounts, and for those that have not yet taken the matter to court, given the risk of limited effects and a direct impact on the sector’s tax burden.
