Exporting companies usually incur in several expenses for the export of goods, such as transport (freight), stowage, port storage services and customs brokers.
Brazilian Federal Revenue Service (“RFB”) has a restrictive interpretation and limits in relation to the taxpayer’s right to credit from PIS/COFINS on such expenses, either on the argument that there would be a restriction on the calculation of credits from exporting commercial companies (“ECEs”) - article 6, § 4, of Law nº 10.833/2003 -, either because it considers that such expenses would not be authorized by tax legislation since they were not incorporated into the exported goods.
Despite this understanding, the Superior Court of Justice ("STJ"), in the judgment of Special Appeal No. 1.221.170/PR (topic nº 779 - Repetitive Appeals) settled the dispute to determine that all expenses necessary and relevant to the taxpayer's economic activity must grant PIS/COFINS credit to the taxpayer.
Based on this understanding, there are recent precedents from the Administrative Court of Tax Appeals (“CARF”) admitting that ECEs can credit the PIS/COFINS levied on customs expenses, considered as payments made by exporters to other Brazilian companies in essential or necessary activities for the export of their goods.
Therefore, we recommend that the above scenario be analysed and quantified by taxpayers who are in a similar situation, even more considering the possibility of reimbursement of PIS/COFINS credits in relation to the last 5 years updated by the SELIC rate.
We remain at your disposal for clarifications.
Por Henrique Erbolato
+55 11 3124 3070
Rua Fidêncio Ramos 195 11°andar
04551-010 SP Brasil
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