The 1st Chamber of the Superior Court of Justice (STJ) unanimously ruled that the Federal Government cannot impose the PIS and Cofins taxes on bonuses and discounts obtained when purchasing goods in the retail sector. This decision was made in a case involving the company Cencosud Brasil, which sought to challenge the collection made by the Federal Revenue Service for not including the amounts related to bonuses and discounts in the calculation of these contributions between April 2006 and December 2010.
Bonuses and discounts are common in the market and can be a way to encourage sales and customer loyalty. Suppliers often reduce prices for the buyer in exchange, for example, for special promotion or product placement in prominent locations in stores.
However, the way these values should be treated for PIS/Cofins taxation purposes has been a subject of debate between taxpayers and the Federal Government.
In 2017, the Federal Revenue Service issued Consultation Solution No. 542, from the General Coordination of Taxation (Cosit), to require PIS and Cofins on cash amounts and discounts received from suppliers. Regarding bonuses, in 2021, the Federal Revenue Service defined through Consultation Solution Cosit No. 202 that these values are revenue and should be included in the calculation base of the contributions.
On the other hand, the retail sector argues that discounts and bonuses should be considered “cost reducers” or, if classified as revenue, should have a financial nature and be subject to a zero tax rate.
The debate reached the 1st Chamber of the STJ in late 2022, when the ministers began to analyze the issue. Minister Regina Helena Costa and Judge Manoel Erhardt voted against taxation because the calculation base for PIS and Cofins in the non-cumulative regime is composed of the company’s monthly revenues, and discounts would not fall within the concept of turnover.
With this unprecedented decision, companies in the retail sector can benefit from a lower tax burden related to these commercial practices and will have more legal certainty not to include the amounts related to bonuses and discounts in the calculation of PIS and Cofins. This is an important victory for the sector and is expected to set a trend in favor of taxpayers in similar cases within the public law chambers of the STJ.