Authors: Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes, with the collaboration of Davi Lima Matos
The Administrative Council for Tax Appeals (CARF) allowed the deduction of discounts granted by financial institutions to customers for the settlement of loans from the calculation of PIS and COFINS under the cumulative regime. The judgment carried out by the 1st Panel of the 4th Chamber of the 3rd Section, decided by 4 votes to 3, represents the first precedent favorable to taxpayers on the matter, enabling its discussion before the Superior Chamber, the last instance of the judging body. In administrative process No. 16327.720173/2020-57, a certain financial institution was fined due to inconsistency in the information presented in the accounting documents in relation to COFINS in the calculation periods between May 2012 and November 2016. The company, when filing an objection, clarified that the divergence in the values reported was due to the accounting of discounts offered to customers to pay off loans due after the 60-day period, with a renegotiation of the debt without requiring any specific condition from the debtors. Although Law No. 9.718/1998 allows the deduction of unconditioned discounts from the PIS and COFINS calculation, the nature of the reduction was discussed in the decision.
According to the vote of counselor Arnaldo Dornelles, rapporteur of the case, the renegotiation of debts could not be considered an unconditional discount as it is subject to the occurrence of a subsequent event: “failure to pay the invoice”. For the judge, the amount could only be deducted when calculating contributions if it was granted at the time of granting credit for the loan. The vote was followed by counselors Gustavo Garcia Dias dos Santos and Marcos Roberto da Silva. However, the position that prevailed in the trial was that of counselor Carolina Machado Freire Martins, who considered that the reductions, as they are pre-established in contractual clauses and result in the reduction of financial charges that impact the final value of the loan, can be considered as unconditional. Furthermore, the judge considered that if the discounts reduce the institution's financial income, the revenue was not earned in full, and such values must be deducted from the PIS and COFINS calculation base.
The understanding was supported by counselors Matheus Zicarelli Rodrigues and Renan Gomes Rego and by counselor Fernanda Vieira Kotzias, totaling a score of four to three in favor of the taxpayer. Despite the judgment in favor of the financial institution, it is worth noting that there is the possibility of a new judgment by the Superior Chamber of Tax Appeals (“CSRF”), which only admits appeals when a divergence from the understanding adopted in the judgment in relation to the other classes is demonstrated. However, the decision is the first favorable precedent on the granting of unconditional discounts for the repayment of loans, an issue that has been gaining relevance in CARF due to the judgment by the STF on Topic No. 372 of the General Repercussion, which decided that financial institutions collect PIS and COFINS on financial income, motivating the sector to review its calculations to deduct values from the contribution calculation bases.
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