Shopping mall retailers, who are facing a serious financial crisis caused by the pandemic, have been able to obtain new decisions in court to alleviate their tax burden. A recent ruling by the Federal Court of São Paulo granted a chain of men's clothing stores the right to PIS and Cofins credits on deposits in a promotional fund, charged by shopping centers for advertising their stores.
In addition to being able to use the credits to pay off federal tax debts, the chain also obtained the right in court to offset the amounts overpaid over the last five years. The amount required for the promotion fund is significant, as it is calculated based on the rent amounts.
Not long ago, another chain of stores, selling men's and women's clothing, belonging to the same business group, was granted the right to PIS and Cofins credits on other costs: condominium fees.
Both discussions arose in the wake of the Superior Court of Justice (STJ) ruling on inputs in 2018. Through a repetitive appeal (REsp 1221170), the ministers decided that anything essential for the development of economic activity should be considered an input and, therefore, capable of generating credit. The analysis must be made on a case-by-case basis, as it depends on evidence.
In relation to these chain stores, the main points of sale are located in shopping centers. In the contracts signed with them, there are clauses that require the payment of various expenses, such as condominium fees and promotional funds.
“These are fees that are true impositions, which if not paid end up impeding your activity,” says attorney Haraly Rodrigues, tax specialist and partner at Roncato Advogados, the firm that filed the two lawsuits. The Federal Revenue Service only authorizes the obtaining of PIS and Cofins credits from rental amounts.
With regard to the promotional fund, the chain of stores claimed that the monthly contribution made by the retailer to the enterprise, to cover the cost of collective marketing, aims to attract more consumers and is intrinsically related to its revenue. As they are essential and relevant to the formation of revenue, the chain claims that they should be considered as inputs.
When analyzing the case, Judge Fernando Marcelo Mendes, of the 13th Federal Civil Court of São Paulo, understood that, according to what was decided by the STJ, as well as considering the economic activity developed by the chain of stores, “the expenses with the promotion fund incurred by the claimant must be considered as input, given their relevance to the activity developed” (case no. 5019479-04.2020.4.03.6100). The decision is still subject to appeal.
Regarding the condominium fee, when analyzing the case, Judge José Henrique Prescendo, of the 22nd Federal Civil Court of São Paulo, considered that the chain's stores are located mostly in shopping centers and that the payment of condominium fees is linked to the rent, which is “essential” (case no. 5019482-56.2020.4.03.6100). In this case, the Attorney General's Office of the National Treasury (PGFN) has already appealed.
The decisions, following what was established by the STJ, confirm the understanding that commercial companies are entitled to PIS and Cofins credits, such as industries and service providers, according to Haraly Rodrigues.
In the case of the promotion fund, lawyer Rafael Fabiano, from Leonardo Naves Direito de Negócios, states that, as it is characterized as an expense whose objective is to attract a greater number of potential consumers to the shopping center, it is configured as an “essential” and “relevant” expense.
When contacted by Valor, PGFN did not respond by the time this edition went to press.