In a decision handed down in the first instance, the Federal Court[1] granted the right to a chain of clothing stores to obtain PIS and COFINS credits on expenses with the implementation and maintenance of data management programs. This is an unprecedented decision in this regard, but once again, it adopted the understanding of the STJ[2] on the concept of inputs based on the criteria of relevance and essentiality.
With the entry into force of the General Data Protection Law (LGPD), companies were faced with a series of obligations to adopt technical and administrative measures in data protection, in addition to a significant investment to comply with all the terms of the law. Given the mandatory and urgent need to comply with the legislation, the need arose to evaluate the possibility of such costs being considered as inputs for the purposes of calculating PIS and COFINS credits in the non-cumulative regime.
The reality is that the LGPD goes far beyond a mere regulatory obligation, and has become an essential practice in the operational routine of companies. Without effective compliance, companies are subject to fines and sanctions, which may even result in restrictions on business activity. Moving on to the list of operating expenses of legal entities, it is only fair that investments supported by companies be covered by the concept of PIS and COFINS inputs.
It is worth noting that companies' expenses with implementing the LGPD requirements[3], are around R$50,000 and R$800,000 for small and medium-sized companies, and can vary between R$1 million and R$5 million for large companies. In addition, there are also maintenance costs, which depend on the sector and the technological platform.
The ruling, therefore, although it is the first to be verified, is a victory for taxpayers, as it opens the way for other companies to also file a lawsuit claiming the right to appropriate such credits, which can generate substantial savings.
[1] 4th Federal Court of Campo Grande/MS.
[2] In the judgment of REsp No. 1,221,170, the STJ assessed the concept of input for the purposes of crediting PIS and COFINS.
[3] According to an estimate presented by PwC Brazil.
