The intermediation services provided by digital delivery platforms in exchange for charging a fee on each order placed are of an input nature, as they are essential to restaurants. Therefore, the discounted amount generates PIS and Cofins credits under the non-cumulative regime.
With this understanding, Judge Itagiba Catta Preta Neto, of the 4th Federal Civil Court of the Federal District, considered illegal the inclusion of fees paid to applications such as iFood and Uber Eats to make up the calculation basis for PIS and Cofins.
The judge granted the security requested by a pizzeria in Brasília that sells around 70% of what it produces through these digital platforms, which charge, on average, an intermediation fee of 30% of the value.
According to the pizzeria, the discounted amount does not even go into its coffers. Even so, it was being considered by the Federal Revenue Service for calculating PIS and Cofins. The company pointed out that the apps have become essential for pizza sales.
When analyzing the case, Judge Itagiba Catta Preta Neto highlighted that the rules regulating the collection of PIS and Cofins allow the legal entity to discount credits calculated in relation to goods and services used as input.
And according to the Superior Court of Justice, the concept of input involves essentiality or relevance. In other words, if something is essential or very important for the economic activity carried out by the taxpayer, it is an input.
“Therefore, digital sales are essential and of unavoidable relevance to the performance of its core business,” concluded the judge. He pointed out that the intermediation fee charged by the apps is, in fact, not part of the company’s revenue.
“Therefore, the services indicated as an intermediation fee by the claimant are of an input nature and, therefore, generate the right to use PIS and COFINS credits in a non-cumulative manner”, he concluded.
The pizzeria was represented in the lawsuit by attorney Nathaniel Lima, from the BLJ Law and Business firm. He explained that the exclusion of brokerage fees is a spin-off of the so-called “thesis of the century,” in which the Supreme Federal Court excluded ICMS from the PIS and Cofins calculation basis.
“The ruling is in line with the understanding that amounts that do not represent an increase in the taxpayer’s assets, but rather a mere passage through their cash register, regardless of their tax regime, do not fall within the concept of revenue for the purposes of levying PIS and Cofins. The fees charged by delivery apps make up their revenue and not that of the intermediary company,” he explained.
He also highlighted the importance of considering these apps as input. “Even more so during the pandemic, when the only way to sell their products was basically delivery, which, consequently, allows these amounts to be credited in the calculation of PIS and Cofins,” he added.
Source: https://www.conjur.com.br/2022-jul-24/taxa-descontada-apps-delivery-gera-credito-pis-cofins