Technology companies can triple their PIS and Cofins bills. This is due to the decision of the First Panel of Division II, Part III of the Administrative Committee on Tax Appeals (CARF) in late 2021, which agreed to apply a non-cumulative regime to companies with licenses and transfers for the use of software developed abroad. And as a result, companies affected by that decision may have to pass value on to apps and games created abroad and sold there. More importantly, it can indirectly influence other groups that are also users of these products.
In this method, the ratio is 9.25%. Therefore, 3.65% of cumulative orders were excluded. Five of the eight counselors in the class believed that the software in this case was imported, so the non-cumulative system was effective.
For Demarest’s lawyer, Gisele Bossa, if this understanding prevails, there will be serious departmental problems. She defended the company involved, SoftwareOne, and highlighted that most companies in the sector charge 3.65% PIS and Cofins.
Kraft reviewed corporate agreements with Microsoft. When distributing a license to use the program to Brazilian consumers, the customer obtained an access key and downloaded it directly from the Microsoft platform. The assessment covers the period from January 2012 to December 2012. However, cloud technology and other software models were not examined.
no physical product
The discussion took into account Law No. 10,833 of 2003 on the collection of coffins. Article 10, paragraph 25, establishes that the income generated by companies providing IT services arising from the development of software and the assignment of licenses or rights of use must be accumulated cumulatively. Paragraph 2 establishes that this does not apply to the commercialization, licensing or assignment of rights to use imported software.
However, there are currently no physical products circulating between countries (which would be characteristic of real imports) because the products are downloaded. “What exists between SoftwareOne and Microsoft is a distribution agreement,” said Gisele. “Software is not nationalized. It has nothing to do with technology transfer.”
He noted that the legislation does not use express import. “(.), but the results referred to in Article 4 “obtained abroad by a natural or legal person having a domicile or domicile”). Uliana Junior also highlighted the decision of the Federal Supreme Court (STF) in 2021, in which ministers ruled against the state tax because they believed that it was not included in the concept of goods.
Even so, it was the vote of deputy Arnaldo Diefenthaeler Dornelles that prevailed in CARF. On behalf of the Ministry of Finance, he stated that article 10, § 2, of Law No. 10,833 refers to “imported software”.
software import
Marco Aurélio Veríssimo, a partner at Keppler Advogados, believes that Carf’s decision could set a dangerous precedent. “It expands the concept of importing software. It often ends up with multiple breach notices being issued,” he commented.
For experts, there can be an indirect financial impact on the company in general. Manuel Eduardo Borges, partner at Peluso, Stupp e Guaritá Advogados, commented that this will make it more expensive for Brazilian companies to acquire foreign technology and software. According to him, there is confusion between use licenses and import licenses.
Notice from the U.S. Treasury Department Attorney General’s Office (PGFN) to those who develop and license or transfer software use rights and perform analysis, programming, installation, configuration, advisory, consulting, technical support, and maintenance or upgrades , if you accumulate regimes. When there is “commercialization, licensing or assignment of the right to use imported software”, the non-cumulative effect is valid.
