The Brazilian Federal Revenue Service (RFB), through Ruling COSIT No. 63/2024, has consolidated its position that commissions paid by merchants to marketplaces domiciled in Brazil may be deducted from the corporate income tax (IRPJ) and social contribution on net profit (CSLL) calculation base, under the real profit regime.
Legal Basis
According to the RFB, such commissions constitute ordinary and necessary operating expenses for e-commerce activities, as they are intrinsically linked to the sale of products in virtual environments. Therefore, their deductibility aligns with the criteria established in the IRPJ and CSLL legislation.
This measure provides greater legal certainty to taxpayers, especially in light of the previous lack of direct guidance on the matter. While many taxpayers had already been applying this understanding in practice, the formal statement from the tax authority standardizes the approach to be adopted by tax auditors throughout the country.
Complement to Previous Guidance
The new position complements Ruling COSIT No. 170/2021, which addressed the exclusion of amounts passed on to sellers from the gross revenue of marketplaces, reinforcing that the revenue earned by these intermediaries consists solely of the commissions effectively retained.
Limits of Deductibility: Impact on PIS and Cofins
Despite the clarity regarding IRPJ and CSLL, controversy remains concerning the treatment of commissions for PIS and Cofins purposes. Although commissions are deductible in the calculation of taxable income, they do not reduce the PIS and Cofins calculation base, as these contributions are levied on gross revenue, pursuant to Law No. 9,718/98 and Article 12 of Decree-Law No. 1,598/77.
In other words, while the company may deduct commissions when determining taxable income, it remains obligated to pay PIS and Cofins on the gross value of sales.
Judicial Landscape
The issue is yet to be definitively settled by the courts. Diverging precedents exist:
- The Federal Court of Appeals for the 3rd Region (TRF-3, São Paulo) recognized in 2022 that commissions paid to marketplaces may be considered inputs, thus allowing PIS and Cofins credits (Case No. 5020186-35.2021.4.03.6100).
- The Federal Court of Appeals for the 4th Region (TRF-4) has issued decisions denying such credits, arguing that these expenses are not part of the production process (Case No. 5037757-76.2019.4.04.7000).
- The Administrative Council of Tax Appeals (CARF) has previously accepted PIS and Cofins credits for digital advertising expenses, an understanding that could, by analogy, be extended to marketplace commissions (Case No. 19311.720262/2017-65).
Prospects with Tax Reform
With the implementation of the Contribution on Goods and Services (CBS), which will replace PIS and Cofins, it is expected that the current controversy will be resolved. The new model envisions broad financial crediting, independent of the criteria of essentiality and relevance currently required for credit recognition.
Conclusion
The recognition of the deductibility of commissions paid to marketplaces for IRPJ and CSLL purposes represents a significant win for the e-commerce sector, particularly under the real profit regime. However, the requirement to pay PIS and Cofins on total gross revenue remains unchanged, requiring strategic attention from taxpayers.
Recommendation
Companies should review their accounting and tax procedures in light of the new RFB guidance and closely monitor judicial and legislative developments on this matter.