By Guilherme Martins and João Pedro Riccioppo Cerqueira Gimenes

The 1st Panel of the Superior Court of Justice (“STJ”) recently concluded the trial of REsp No. 1,836,082/SE, in which it ruled out the incidence of PIS and COFINS on bonuses, rebates and commercial discounts obtained in the acquisition of goods by a retail company. The decision is quite relevant for the retail sector.

Thus, for the First Panel of the STJ, discounts granted by the supplier to the retailer, even when conditioned on consideration linked to the purchase and sale transaction, are not subject to the incidence of PIS and COFINS contributions borne by the purchaser. In these situations, there is no need to talk about revenue or any financial income that would justify taxation.

This victory for the taxpayer could represent the beginning of a turning point in case law, considering that the decision ruled out the collection, by the National Treasury, of amounts resulting from the reduction in the cost of acquiring products, due to commercial adjustments entered into with suppliers, which were included by the Tax Authorities in the calculation basis for the PIS and COFINS contributions.

The rapporteur, Minister Regina Helena Costa, clarified that, in relation to the retailer, discounts subject to consideration by the purchaser must be classified as reducing the cost of acquiring goods, and not as revenue for the levying of social contributions.

Typically, in practice, commercial bonuses and discounts are concessions made in a purely business and commercial context, by the seller to the buyer, which may arise from various conditioning acts, resulting, for example and in the vast majority of cases, in a reduction in the price of the good (which implies a reduction in the acquisition cost) or in the delivery of a larger quantity than that initially stipulated by the parties. In turn, in the case of large retailers, they are generally also linked to sales performance, advertising and other promotional strategies.

Thus, the most recent discussions remain on how companies should qualify and classify the nature of these values in their accounting records, that is, whether or not they are considered revenue for the purposes of determining the PIS and COFINS calculation basis.

In the administrative sphere, in a judgment of the 3rd Panel of the CSRF, the taxpayer's appeal was granted, excluding the incidence of PIS and COFINS on discounts obtained on the acquisition of goods (case no. 10480.722794/2015-59). In this case, the understanding prevailed that
unconditional discounts and bonuses would not be considered revenue, and therefore the aforementioned contributions would not apply.

In the judicial sphere, the Regional Federal Court of the 4th Region, in a trial concluded in August 2022, in a rare decision, also ruled in favor of the matter, in the case of the taxpayer “WS Supermercados do Brasil”, understanding that the discounts and bonuses on goods obtained by the buyer would not constitute income subject to PIS and COFINS contributions.

Since the contributions must be levied on the revenue incorporated into the taxpayer's assets through the sale of goods and not on the revenue that is disincorporated to fulfill the contractual obligation to purchase the goods.

Furthermore, according to the aforementioned ruling by the 4th Regional Federal Court, “when purchasing at a discount, the taxpayer reduces its acquisition cost and this does not have the legal nature of revenue for the purposes of levying PIS and COFINS contributions”. The fact that the reduction in the acquisition cost increases net equity, adds the decision, “is not relevant because we are dealing with taxes that are not levied on positive equity changes, but on revenues” (case no. 5052835-04.2019.4.04.7100/RS).

In turn, the case analyzed by the STJ was that of the taxpayer “Cencosud Brasil”, which sought to avoid the charge made by the Brazilian Federal Revenue Service for not including in the calculation of PIS and COFINS amounts relating to bonuses and discounts (REsp No. 1,836,082/SE).

Within this context, our team is available to provide any clarification on the subject.